Evidence Law 2 Mshana

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Evidence LAW (2)-Mshana
Law of Evidence (St. John's University of Tanzania)
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Evidence Tanzania Police Academy

TABLE OF CONTENTS
1. INTRODUCTION......................................................................................................... v
1.1 Evidence.......................................................................................................................v
1.2 Source of Evidence.......................................................................................................v
1.3 What is Evidence?........................................................................................................v
1.4 Types of Evidence .......................................................................................................v
2. RELEVANCY AND ADMISSIBILITY OF ACTS.................................................... 7
2.1 Introduction .................................................................................................................7
2.2 Facts Forming Part of the Same Transaction (Res Gestae)..........................................7
2.3 Facts Causing or Caused by Other Facts......................................................................9
2.4 Facts Relating to Motive, Preparation and Conduct.................................................. 10
2.5 Explanatory and Introductory fact............................................................................. 11
2.6 Statements and actions referring to common intention .............................................12
2.7 Facts inconsistent with or affecting probability of other facts...................................13
2.8 Facts tending to enable the court to determine damages ...........................................13
2.9 Facts relevant when right or custom is in question....................................................13
2.10 Facts showing existence of state of mind or feeling ............................................... 14
2.11 Facts Bearing on Question Whether Act was Accidental or Intentional.................15
2.12 Evidence of Course of Business when Relevant......................................................15
3. HEARSAY EVIDENCE..............................................................................................17
3.1 Introduction................................................................................................................17
3.2 Reasons for not admitting Hearsay Evidence ........................................................... 17
3.3 Exception to the Hearsay rule.................................................................................... 17
3.3.1 Dying declaration ...............................................................................................18
3.3.2 Statements Made in the Ordinary Course of Business........................................23
3.3.3 Statements Against the Interest of the Maker..................................................... 24
3.3.4 Statements Giving Opinion as to Public Right etc..............................................25
3.3.5 Statements as to Existence of Relationship ........................................................25
3.3.6 Statements in a will or deed Relating to Family Affairs ....................................25
3.3.7 Statements in Documents Relating to Certain Specific Transactions.................25
3.3.8 Statements Made by Several Persons Expressing Feelings ............................... 25
3.3.9 Evidence Given in Judicial Proceedings ............................................................25
3.3.10 Statements Under Special Circumstances.........................................................27
4. PROOF......................................................................................................................... 30
4.1 Direct/Oral Evidence .................................................................................................30
4.2 Documentary Evidence ............................................................................................. 30
4.3 Types of documents .................................................................................................. 30
4.3.1 Public documents................................................................................................ 31
4.3.2 Private documents...............................................................................................31
4.4 Primary and Secondary Evidence ............................................................................. 31
4.4.1 Primary Evidence................................................................................................31
4.4.2 Secondary Evidence............................................................................................ 32
4.5 Proof of Documents by Primary Evidence.................................................................32
4.6 Proof of Document by Secondary Evidence .............................................................33
4.6.1 Original shown in possession but not produced (s. 67(1) (a) .............................33
4.6.2 Existence of original admitted in writing (s. 67(1) (b) .......................................33
4.6.3 Original destroyed or lost....................................................................................33
4.6.4 Original not easily moveable ............................................................................. 33
4.6.5 When the original is public document................................................................ 33
4.6.6 When the original is a document whose certified copy is legally permitted .....33
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4.7 Proof of Execution of Document .............................................................................. 34
4.8 Presumption as to documents ....................................................................................35
4.9 Exclusion of Oral by Documentary Evidence............................................................37
5. ADMISSIONS .............................................................................................................43
5.1 Definition of Admissions .......................................................................................... 43
5. 2 Classification of Admissions.....................................................................................43
5.2.1 Judicial Admissions (Formal Admissions)......................................................... 43
5.2.2 Extra-judicial Admissions (Informal Admissions)............................................. 43
5.2.3 Implied Admissions.............................................................................................44
5.2.4 Express Admissions............................................................................................ 44
5.3 Ingredients of Admissions .........................................................................................44
5.4 Effect of Admissions..................................................................................................45
5.5 Statement by Party to Suit, etc. ................................................................................. 45
5.6. Admission by Party to Proceedings or his Agent (section 20(1)) ............................45
5.7 Admissions Made by a Person in Representative Character (section 20(2)).............45
5.8 Admissions by Party Interested in Subject Matter (section 20(3) (a)).......................46
5.9. Admission by Person from whom Interest is Derived (section 20(3) (b))................46
5.10. Admissions by Persons whose Position must be Proved as against Party to Suit
(section 21).......................................................................................................................46
5.11. Admissions by Persons Expressly Referred to by Party to Suit (section 22)..........46
5.12 Proof of Admissions against Persons Making them (section 23)............................ 47
5.12.1 Maker of the Admission is dead (section 23(a))............................................... 48
5.12.2 Admissions made in Particular Mental or Physical State (section 23(b)).........48
5.12.3 Admission Relevant Otherwise than Admission (section 23(c))......................48
5.13 Oral Admissions Regarding Contents of Documents.............................................. 49
5.14 Admissions in Civil Cases, when Relevant..............................................................49
6. CONFESSIONS .......................................................................................................... 50
6.1 Definition of Confession............................................................................................ 50
6.2 Conditions for the Confession....................................................................................51
6.3 Classification of Confessions ....................................................................................51
6.3.1 Judicial Confession ............................................................................................ 51
6.3.2 Extra-judicial Confession....................................................................................51
6.4 Rules Regarding Confession......................................................................................51
6.4.2 Confession Made before Magistrate................................................................... 53
6.4.3 Confession Caused by Inducement, Threat or Promise...................................... 54
6.4.5 Relevance of Information Received from Accused Person in Police Custody...56
6.4.6 Confession not necessarily Rendered Inadmissible Because of Deception,
Promise of Secrecy, etc. .............................................................................................. 57
6.4.7 Confession Implicating Co-accused ...................................................................58
6.4.8 Retracted/Repudiated Confession ..................................................................... 60
7. PRODUCTION AND EFFECT OF EVIDENCE.....................................................63
7.1 Burden of Proof .........................................................................................................63
7.2.1 The Legal (Persuasive) Burden of Proof.................................................................63
7.2. The Prima Facie Case ...............................................................................................64
7.3 Right begin the case................................................................................................... 64
7.4 On whom the Burden of Proof lies.............................................................................64
7.5 Burden of Proof as to particular facts........................................................................ 64
7.6. Burden of Proving Facts to be Proved to Make Evidence Admissible.....................64
7.7. Burden of Proof in Criminal Cases........................................................................... 65
7.8 Burden of Proof in civil cases.................................................................................... 65
7.9 Extent of Burden of Proof on accused....................................................................... 66
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7.10. Presumptions ...........................................................69
8. ESTOPPEL ................................................................................................................. 71
8.1 Definition .................................................................................................................. 71
8.2. Elements/ingredients of Estoppel .............................................................................71
8.3 Estoppel by Conduct ................................................................................................. 72
8.3.1. Prepositions of an Estoppel by Conduct............................................................ 72
8.3.2 Estoppel by Misrepresentation ...........................................................................73
8.3.3 Implied representation ........................................................................................73
8.3.4 Mere silence not a Representation...................................................................... 73
8.3.6. Estoppel by conduct and waiver.........................................................................74
8.4 Estoppel by Record/Judgment ...................................................................................75
8.5 Estoppel by Deed....................................................................................................... 76
8.6 Estoppel by Tenant etc...............................................................................................77
8.7. Estoppel of Acceptor of bill of exchange..................................................................77
8.8. Estoppel of a bailee or licensee ................................................................................77
9. WITNESSES ............................................................................................................... 79
9.1 Competency, Compellability and Privilege of Witnesses .........................................79
9.1.1 Who may testify .................................................................................................79
9.2 Number of Witnesses ............................................................................................79
9.1.3 Persons of Tender Years..................................................................................... 80
9.1.4 Dumb Witnesses..................................................................................................81
9.1.5 Privilege of Court................................................................................................81
9.1.5 Evidence of Spouses ...........................................................................................82
9.1.6 Privilege relating to official Records ................................................................. 83
9.1.7 Information as to Commission of Offences........................................................83
9.1.8 Professional Communication ............................................................................. 83
9.1.9. Section 134 Apply to Interpreters etc ................................................................84
9.1.10 Privilege no waived by volunteering evidence ................................................ 84
9.1. 11 Confidential Communications with Legal Advisers .......................................84
9.1.12 Production of Title-deeds of Witness not a Party............................................. 84
9.1.13 Production of Incriminating Documents...........................................................85
9.1.14 Witness not Excused from Answering on Ground that Answer will incriminate
......................................................................................................................................85
9.1.15 Evidence in Offences of Receiving ..................................................................85
9.1.16 Accomplice’s Competence as Witnesses .........................................................86
THE EXAMINATION OF WITNESSES .....................................................................90
1.1 The Order of Production of Witnesses.......................................................................90
10.1.2. Court to Decide on Admissibility of Evidence................................................ 90
10.1.3. Examination of Witnesses ...............................................................................91
10.1.4. Order and Direction of Examination................................................................91
10.2 Examination of Witnesses........................................................................................93
10.2.1 Cross-examination of Person Called to Produce Document.............................93
10.2.2 Witness to Character......................................................................................... 93
10.2.4 Evidence as to Matters in Writing.....................................................................94
10.2.5 Cross-examination as to Previous Statements in Writing.................................94
10.2.6 Questions Lawful in Cross-examination...........................................................95
10.2.7 When Witnesses to be Compelled to Answer...................................................96
10.2.8 Cross-examination of Accused Person..............................................................96
10.2.9 Court to Decide when Questions shall be Asked and when Witness Compelled
to Answer..................................................................................................................... 96
10.2.10 Questions not to be Asked Without Reasonable Grounds.............................. 97
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10.2.11 Indecent and Scandalous Questions................................................................ 97
10.2. 12 Questions Intended to Insult or Annoy ......................................................... 98
10.2. 13 Exclusion of Evidence to Contradict Answers to Questions Testing Veracity
......................................................................................................................................98
10.2.14 Questions by Party of his own Witness...........................................................99
10.2.15 Impeaching Credit of Witness.........................................................................99
10.2.16 Evidence to Corroborate Evidence of Relevant Facts ..................................102
10.2.17 Former Statements May be Proved to Corroborate later Testimony............102
10.2.18 What Matters may be proved in Connection with Proved Statements Relevant
under sections 34 or 35...............................................................................................102
10.3 Refreshing Memory and Production of Documents...............................................103
10.3.1. Refreshing Memory .......................................................................................103
10.3.2 Use of Copy of Document to Refresh Memory.............................................. 103
10.3.3 Expert may refresh his Memory......................................................................104
10.3.4 Testimony to Facts Stated in Document Mentioned in Sections 168 or 169. .104
10.3.5 Right of Adverse Party as to Writing used to refresh Memory.......................105
10.3.6 Production of Documents................................................................................106
10.3.7 Giving as Evidence of Document called for and Produced on Notice............106
10.3.8 Using as Evidence of Document Production of which was Refused..............107
10.3.9 Power of Court to put Question or Order Production..................................... 107
10.3.10 Power of Assessors to put Questions ........................................................... 108
10.3.11 Improper Admission and Rejection of Evidence.......................................... 108
11 CORROBORATION ON WITNESS......................................................................109
11.1 Introduction............................................................................................................109
11.2 Statutory Requirement of Corroboration............................................................... 109
11.2.1 Evidence of a Child of Tender Years..............................................................109
11.2.2 Confession of Co-accused...............................................................................109
11.2. 3 Evidence on a Charge of Perjury....................................................................110
11.2.4 Seditious Offences...........................................................................................110
10.3 Corroboration as Required in Practice................................................................... 110
11.3.1 Evidence of a Single Witness..........................................................................110
11.3.2 Dying Declaration .......................................................................................... 110
11.3.3 Evidence of Police Decoys .............................................................................110
11.3.4 Sexual Offences...............................................................................................110
11.3.5. Retracted/Repudiated Confession.................................................................. 111
12. RELEVANCY OF OPINION OF THIRD PERSON........................................... 111
12.1 Opinion of Experts................................................................................................. 111
12.2 Facts Bearing upon Opinions of Experts................................................................113
12.3 When Opinion as the Handwriting relevant...........................................................113
12.4 Opinion as to Existence of Right or Custom..........................................................114
12.5 Opinion as to Usage, Tenets etc.............................................................................115
12.6. Opinion on Relationship........................................................................................115
12.7 Ground of Opinion.................................................................................................116
13. RELEVANCY OF CHARACTER.........................................................................117
13.1 Definition of Character...........................................................................................117
13.2 Character in Civil Cases.........................................................................................117
13.3 Good Character in Criminal Cases.........................................................................119
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1. INTRODUCTION
1.1 Evidence
Evidence is the mode of proving facts. It has been existing from the primitive society to
the present society. There were several means of adducing evidence e.g. trial by ordeal,
trial by battle and jumping over fire.
In the Middle Age they used single witness. This is quite different from Islamic system
which used oral testimony where one man was equal to two women; also the religion of
the witness mattered (must be a Moslem). In Islamic law there are cases which come from
the QURAN which are called hadd and the serious one is adultery (you have to prove by
using two men). The punishment for adultery is stoning to death, and when caught
drinking the punishment is slashing.
Under the Middle Age, the single witness system continued but later on found to be very
harsh so they invited many witnesses and later on the jury system emerged.
1.2 Source of Evidence
(a) Statutes
• The Evidence Act, Cap. 6 in Tanzania Mainland and Zanzibar Evidence Decree in
Zanzibar
• Economic and Organised Crimes Control Act, Cap. 200
• The Wildlife Conservation Act, Cap. 283
• The Criminal Procedure Act, Cap. 20
(b) Case Laws
• Decisions of the higher courts bind the lower court.
• Cases originating from English or Indian courts are only persuasive.
1.3 What is Evidence?
According to section 3, evidence denotes the means by which an alleged matter of fact, the
truth of which is submitted to investigation, is proved or disproved, and without prejudice
to the preceding generality, includes statements and admissions by accused person.
These facts which are said to be proved are given by way of testimony either by a person
related to the case or by a witness. It may also be proved by using document related to the
case or any fact in issue. Therefore evidence means facts and means of proving it.
1.4 Types of Evidence
• Oral evidence—Statement made by party/witness in the court.
• Documentary Evidence—Produced in court for inspection by the judge or
magistrate.
• Direct Evidence—Evidence of fact which is actual in issue perceived by a witness
with his/her senses.
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• Circumstantial Evidence—Evidence of a fact which is not actual in issue but legal
relevant to the fact in issue.
• Real Evidence—Supplied by material object for inspection by the court.
• Extrinsic Evidence—Is oral evidence given in connection with written evidence.
• Hearsay Evidence—Evidence of a fact not actual perceived by a witness with
his/her senses but proved to have been said by another person.
• Indirect Evidence—Is circumstantial or hearsay evidence.
• Original Evidence—Evidence which has force of its own.
• Derivative Evidence—drives its force from other sources.
• Parole Evidence—Oral or extrinsic evidence.
• Prima facie evidence—Of a fact which the court may take as it is unless disproved
by other evidence.
• Primary Evidence—Itself suggest the best evidence e.g. original document.
• Secondary Evidence—Existence of a better evidence it is rejected if the primary
evidence is available.
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2. RELEVANCY AND ADMISSIBILITY OF ACTS

2.1 Introduction
Relevancy is the test of admissibility, but relevancy is inevitably used in a restricted legal
and not in a logical sense. Facts may be logically relevant and yet may not be deemed to
be relevant for the purpose of the Evidence Act and evidence of them is highly
inadmissible e.g. in a case where A is charged for the murder of B by stabbing, the fact
that a witness C was told by D (who does not give evidence in the case) that he (D) saw
A stab B is logically highly relevant but unless certain circumstances detailed in the
Evidence Act exist, this fact is legally irrelevant and evidence of it is inadmissible.
All facts to be admissible they must be relevant, but not all relevant facts are admissible.
Facts are admissible if they are relevant to a fact in issue or are relevant facts. A fact is
relevant if it is connected with another fact(s) or fact in issue. This connection is only
relevant as provided by the Evidence Act and not other way. Therefore relevant means
admissible and is admissible if it is relevant with fact in issue.
Section 7 deals with the right to produce evidence in any suit relating to the existence or
non-existence of every fact in issue, and also to prove such other facts which may be
declared relevant under the provisions of the Evidence Act.
E.g. A is tried for the murder of B by beating him with a club with the intention of
causing death.
At A’s trial the following facts are in issue:
A’s beating B with the club;
A’s causing B’s death by such beating;
A’s intention to cause B’s death.
This section excludes everything not covered by some other succeeding sections. The
words “and of another” preclude a party from providing any fact not in issue or not
declared relevant by any of the remaining sections of this chapter. To establish the
relevancy of any fact, it must be shown that it is a fact in issue or fact such as is declared
to be relevant. Relevancy is explained in sections 8-13. These sections are widely
designed in such a way that they overlap each other. Thus a motive for the fact in issue
(s. 10) is part of its cause (s.9), subsequent conduct influenced by it (s.10 is part of its
effect (s.9). Facts relevant under section 13 would in most cases be relevant under other
sections.
2.2 Facts Forming Part of the Same Transaction (Res Gestae)
Section 8 deals with relevancy of facts forming part of the same transaction. Facts though
not in issue, if they are connected with a fact in issue as to form part of the same
transaction are relevant whether these facts occurred at the same time and place or at
different times and places.
E.g.
(a) A is accused of the murder of B by beating him. Whatever was said or done by A or B
or the by-stander at the beating, or so shortly before or after it as to part of the
transaction is relevant fact.

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(b) A sues B for a libel contained in a letter forming part of a correspondence. Letters
between the parties relating to the subject out of which the libel arose, and forming
part of the correspondence in which it is contained, are relevant facts though they do
not contain the libel itself.
(c) the question is, whether certain goods ordered from B were delivered to A. the goods
were delivered to several intermediate persons successively. Each delivery is a
relevant fact.
Section 8 admits those facts the admissibility of which comes under the technical
expression res gestae (i.e. the things done, including words spoken in the course of a
transaction) but such facts must form part of the same transaction.
Transaction is defined as a group of facts so connected together as to be referred to by a
single name as a crime, a wrong or any other subject of enquiry which may be in issue.
The things done and the words spoken are group that form fact in the form of the same
transaction when we talk about res gestae. These things from physical acts and the words
accompanying such physical acts. These acts might have been spoken by the person
doing the act or to whom they were done or to any other person.
In the case of R. v. Bendingfield (1879) 14 Cox 341, on a charge for murder, it appeared
the deceased, with her throat cut came suddenly out of a room in which she left the
defendant who also had his throat cut and was speechless and that she said something
immediately after coming out of her room and a few minutes before she died, her
statement was rejected by the court as not being part of the re gestate on the ground that
it was not uttered at the time the act was being done but after the act was completed. In
the case of Premji Kurji v. R (1940) E.A.C.A. 58 the appellant appealed from a
conviction of murder. The deceased had been killed with a dagger. Evidence was
admitted of the fact that just prior to the death of the deceased, the appellant had
assaulted the deceased’s brother with a dagger and had uttered threats against the
deceased (words spoken by appellant: “I have finished you and I am going to show your
brother”). The court held that:
The evidence of the attack on the deceased’s brother was admissible in the
circumstances as part of the re gestae.
Though acts which constitute the transaction may occur at different times, yet time is a
crucial factor (contemporaneous). If the incident which is claimed as part of the re gestae
occurred after the transaction is completed it cannot be part of it. In Ramadhani Ismail
v. The Crown (1945) 7 Z.L.R.36, a young child having been raped went crying straight
to her home, only two or three houses away, had some conversation with her parents and
then led her father to the house where she had been assaulted. On arrival at the accused’s
house she said “That is the Bwana”. It was held that this utterance could not be
considered part of the re gestae; “When it comes to a matter of re gestae minutes are a
matter of the utmost importance.”
For the declaration accompanying acts to be part of the res gestae must be:
(i) The declaration must be substantially contemporaneous with the act i.e. made
either during or immediately before or after its occurrence, but not at such an
interval to allow fabrication or to reduce them to mere narrative of past events.

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(ii) The fact itself must be in issue or relevant and the declarations can only be used to
explain the fact they accompany, and not prior or subsequent disconnected fact.
(iii) The declarations are not proof of the facts they accompany this must
be established independently. And though admissible to explain or corroborate
they are not in general evidence of the truth of the matters stated i.e. they are
original evidence not exception to the hearsay.
2.3 Facts Causing or Caused by Other Facts
Section 9 admits a very large class of facts, connected with facts in issue or relevant
facts, though not forming part of the transaction. This section deals with facts which are
(i) the occasion or cause of a fact (ii) as being it fact (iii) as giving opportunity for its
occurrence (iv) as constituting the state of things under which it happened e.g.
(a) facts relevant as giving occasion or opportunity
The question is whether A robbed B,
The fact that shortly before the robbery, B went to a fair with money in his possession
and that he showed it or mentioned the fact he had it to third person is relevant.
(b) The fact constituting an effect
The question is whether A murdered B
Marks on the ground produced by a struggle at or near the place murder was
committed are relevant facts.
(c) Facts constituting the state of things under which alleged fact happened
The question is whether A poisoned B
The state of B’s health before the symptoms ascribed to poison, and habit of B known
to A which afforded an opportunity for the administration of poison are relevant fact.
The general rule is that facts not otherwise relevant do not become relevant merely
because of their close similarity to the facts in the case being tried. Evidence of the fact
that the accused has on previous occasion committed a similar crime is inadmissible as
showing that he has a propensity to commit crimes of this sort and therefore more likely
to have committed the crime for which he is now being tried. In the case of Making &
Wife v. A. G. for New South Wales (1894) 17 Cox c.c. 704, the court said the
following;
“It undoubtedly not competent for the prosecution to adduce evidence tending
to show that the accused has been guilty of criminal acts other than those
covered by the indictment for the purpose of leading to the conclusion that the
accused is a person likely from his conduct or character to have committed
the offence for which he is being tried”.
However, there are circumstances under which the commission of similar crimes on
previous occasions will be relevant in particular. In the case of R. Smith (1915) Cr. App.
R. 229, the accused was charged for the murder of A. Evidence as to the death of B and C
on dates subsequent similar to those attending the death of A was held to have been
rightly allowed in order to show that the death of A was not accidental but designed. In
another case of R. James Brabin & Ram Pratap Khosla (1949) E.A.C.A. 80, the
appellants were convicted of corrupt practices contrary to section 383 of the Kenya Penal

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Code. The particulars of the offence were that, they, being persons employed by the
Commodity Board, obtained a sum of money from one Hasham Kara for forbearing to
show disfavour to him in relation to the affairs of the Commodity Board. At the trial
evidence was admitted under section 7 Indian Evidence Act (s. 9 Tanzania Evidence Act)
of previous corrupt transaction by the appellants with Hasham Kara. The court held;
That as the evidence of the previous corrupt transaction also concerned
Hasham Kara such evidence was admissible. For it showed the “state of
things” under previous similar offence and the offence charged.
The court further said that;
“If for instance the “state of things” were that the person charged with
demanding the bribe were total strangers to the person from they demanded
it, that would be a different “state of things” from the position as alleged to
be here, namely that the parties demanding the bribes were on such terms
with Hasham Kara that on a previous occasion only five months earlier bribe
had been demanded and successfully extracted.”
In John Makindi v. R. [1961] E.A. 327 the accused was convicted of the manslaughter
of a boy by beating. Evidence of previous beating was upheld on appeal to be admissible
under section 7. (S.9 TEA)
2.4 Facts Relating to Motive, Preparation and Conduct
Section 10 mainly deals with three aspects:
(a) a fact which shows or constitute a motive for any fact in issue or relevant fact.
(b) The acts constituting preparation for any fact in issue or relevant fact
(c) The conduct of a person either previous or subsequent to the offence.
E.g.
Motive: A is tried for the murder of B, the fact that A murdered C that B knew A
murdered C and that B had tried to extort money from A by threatening to make his
knowledge public are relevant.
Preparation: A is tried for the murder of B by poison. The fact that before the death of
B, A procured poison similar to that which was admitted to B is relevant.
Conduct: A is accused of a crime, the fact that either before or at the time of or after the
alleged crime, A provided evidence which would tend to give to the facts of the case an
appearance favourable to himself, r that he destroyed or concealed evidence or prevented
the presence or procured the absence of person who might have been witnesses or
suborned persons to give false evidence respecting it, are relevant.
Statements affecting the conduct of the accused: the question is whether A robbed B.
the fact that after B was robbed, C said in A’s presence “the police are coming to look for
the man who robbed B” and that immediately afterwards A ran away, are relevant.
The question is whether A committed a crime. The fact that A absconded after receiving
a letter warning him that inquiry was being made for the criminal and the contents of the
letter are relevant.

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Statements explaining and accompanying acts—res gestae: The question is whether A

was raped. The fact that shortly after the alleged rape she made a complaint relating to
the crime, the circumstances under which and the terms in which the complaint was made
are relevant.
The fact that without making a complaint, she said that she had been raped is not relevant
as conduct under this section, though it may be relevant as a dying declaration under
section 34(a) TEA.
Motive: is that which moves a man to do a particular act. It is that which is in the mind of
a man and which moves him to act. Motive is the emotion supposed to have led to the
act. Motive also can be defined as a desire of revenge some real or fancied wrong; of
getting rid of rival or an obnoxious connection; or of escaping from the pressure of
pecuniary or other obligation or burden. E.g. the exchange of hot words by the accused
tow days prior to the incident can be enough motive to kill a person. In the case of John
Makindi v. R [1961] E.A.327 the evidence of a previous beating of the deceased by the
accused which had resulted in the latter’s conviction was admissible under this section as
showing a motive which the accused had revenge on the deceased.
Conduct: mere statements as distinguished from the act cannot constitute conduct unless
those statements accompany and explain the acts other than statements. Signs made by
the deceased shortly before her death when questioned as to the circumstances under
which injuries had been inflicted on her, could not be proved as conduct as taken alone
and without referring to questions leading to them, there is nothing to connect them with
the cause of death and so to make them relevant.
Preparation: preparation consists in devising or arranging necessary means for the
commission of the offence and includes the means of accomplishing it. Though
preparation is not an offence, still any fact which shows preparation is relevant.
Preparation on the part of the accused to accomplish the crime charged or to prevent its
discovery or to avoid his escape or to avert suspicion from himself are relevant on the
question of his guilty.
2.5 Explanatory and Introductory fact
Section 11 makes admissible facts which are necessary to explain or introduce relevant
facts, such as place, name, and date, identity of parties, circumstances and relations of the
parties. E.g.
(i) The question is whether a given document is the will of A
The state of A’s property and of his family at the date of the alleged will may be
relevant facts.
(ii) A is accused of a crime.
The fact that soon after the commission of the crime, A absconded from his house, is
relevant under section 8 as conduct subsequent to and affected by facts in issue.
The fact that at the time when he left home he had sudden and urgent business at the
place to he went, is relevant as tending to explain the fact that he left home suddenly.
The details of the business on which he left are not relevant except in so far as they
are necessary to show that the business was sudden and urgent.

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(iii) A, accused of theft, is seen to give the stolen property to B who is seen to give it
to A’s wife. B says as he delivers it “A says you are to hide this.” Bs’ statement is
relevant as explanatory of a fact which is part of the transaction.
Under this section it is not necessary that the person against whom the statement is made
should be present when it is made. (e.g. (iii) above.)
In the case of Stanislai alias Kanyambo s/o Kitambo v. R. (1942) 258 the appellant
was convicted for obtaining goods by false pretences and for uttering a forged document.
On 16th April he presented to a shopkeeper a not purporting to be an order by one Sued
for two pieces of Amerikani at the price of 58/= in all. In corroboration of complainant’s
evidence was given that the appellant had attempted to obtain 200/= from another person
by means of a similar note purporting to be signed by Sued. The court of appeal held that
the trial court was wrong in admitting the evidence of a previous similar transaction,
saying that although this evidence was admissible under section 9 of the Indian Evidence
Act (s. 11 TEA) it should have not been admitted in this case in view of the lapse of time
between the two transactions. The court further held that;
Evidence of facts which tend to establish the identity of the accused (which evidence is
declared by section 9 (s. 11) to be relevant) is not rendered inadmissible because it
disclose the commission of another offence, though legal admissible ought not to be
received except where the similarity and the proximity in point of time of the two sets of
facts is such that it would be unreasonable to draw any other conclusion than that the
accused was the person who concerned in each.
2.6 Statements and actions referring to common intention
Section 12 deals with the situation where there are two or more persons who have
conspired together to commit an offence or an actionable wrong, that is to say there
should be a prima facie evidence that a person was a party to the conspiracy. The acts
and declaration of the other conspirators and the acts done at different times are admitted
in evidence against the person prosecuted. By the act of conspiring together, the
conspirators have jointly assumed to themselves as a body, the attitude of individuality so
far as regards the prosecution of the common design; thus rendering whatever is done or
said by any one in the furtherance of that design a part of the res gestae and therefore the
fact of all. E.g.
Reasonable grounds exists for believing that A has joined a conspiracy to wage war
against the government of Tanzania.
The fact that B procured arms in Europe for the purpose of the conspiracy, C collected
money in Dar es Salaam for a like project, D persuaded persons to join the conspiracy in
Tanga, E published writings advocating the object in view at Moshi and F transmitted
from Arusha to G at Mwanza the money which C had collected at Dar es Salaam and the
contents of a letter written by H giving an account of the conspiracy are each relevant but
to prove the existence of conspiracy and to prove A’s complicity in it, although he may
have been ignorant of all of them, and although the persons by whom they were done
were strangers to him and although they may have taken place before he joined the
conspiracy or after he left it.
An act or declaration of a co-conspirator even after the termination of the conspiracy is a
relevant fact for the purpose of showing that such person was a part to it. In the case of
R. v. Gokaldas Kanji karia & Alibhai Mawnji (1949) 16 E.A.C.A. 116 where the

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appellants were convicted for conspiracy to export diamond from Tanganyika, the court
held that an agreement to conspire may be deduced from any acts which raise the
presumption of any common intention. In John Moody Lawrence Brown & Another v.
R. [1957] E.A. 371, the appellants were convicted of conspiracy to defraud, the court
said that entries in one of the conspirators cheque book indicating the payment of sums to
another of the conspirators were evidence not only against the owner of the cheque book
but against his fellow conspirators as to the existence of the conspiracy and as to the
parties to it.
2.7 Facts inconsistent with or affecting probability of other facts
Section 13 makes facts which are not otherwise relevant to be relevant. This section is
regarded as a residuary section. The facts are relevant provided that the conditions
specified under subsections, 1 and 2 of this section are fulfilled. E.g.
a). The question is whether A committed a crime at Dar es Salaam on a certain day.
The fact that on that day A was at Arusha is relevant.
The fact that near the time when the crime was committed, A was at a distance from the
place where it was committed which would render it highly improbable though not
impossible that he committed the offence is relevant.
b). The question is whether A committed a crime.
The circumstances are such that the crime must have been committed either by A, B, C,
and D. every fact which shows that the crime could have been committed by no one else
that it was not committed by either B, C or D is relevant.
Under this section any fact which either disprove or tends to prove or disprove any claim
or charge in a case is made relevant. E.g. where the question is whether X lent money to
Y the evidence of the property of X about the time of the alleged loan is admissible to
disprove it, or where the question is whether X is the child of Y evidence of the
resemblance or want of resemblance of X to Y is admissible.
Collateral facts which by way of contradiction are inconsistent with a fact in issue or
another relevant fact i.e. which make the existence of a fact in issue or relevant fact
probable or which by way of corroboration
2.8 Facts tending to enable the court to determine damages
Section 14 enables the court to admit any fact which will help it to determine the amount
of damages which ought to be awarded to a party. When damages are claimed in a suit
the amount o damages is a fact in issue.
2.9 Facts relevant when right or custom is in question
Section 15 provides that where the question is as to existence of any right or custom
certain transactions or certain instances are relevant. E.g.
The question is whether A has a right to a fishery. A deed conferring the fishery on A’s
ancestors, a mortgage of the fishery by A’s father, a subsequent grant of the fishery by
A’s father, irreconcilable with the mortgage, particular instances in which A’s father
exercised the right or in which the exercise of the right was stopped by A’s neighbours
are relevant.

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Custom is a rule which in a particular family or in a particular district has from long
usage obtained the force of law. For a custom to be valid it must be:
a) ancient
b) continuous and uniform
c) reasonable
d) certain
e) compulsory and not optional
f) peaceable and
g) not immoral
2.10 Facts showing existence of state of mind or feeling
Section 16 declares facts which show the existence of any state of (i) mind—intention,
knowledge, good-faith, negligence, rashness, ill-will, good-will or (ii) body or (iii) bodily
feeling to be relevant when such state of mind or body/bodily feeling is in issue or
relevant.
Intention
(d) A is charged with shooting at B with intent to kill him. In order to show A’s intention
the fact of A’s having previously shoot at B may be proved.
(e) A is charged with sending threatening letters to B. threatening letter previously sent
by A to B may be proved as showing intention of the letters.
Knowledge
(a) A is accused of receiving stolen goods knowing them to be stolen. It is proved that he
was in possession of a particular stolen articles. The fact that at the same time he was
in possession of may other stolen articles is relevant as tending to show that he knew
each and all of the articles he was in possession to be stolen.
(b) A sues B for damages done by a dog of B’s which B knew to be ferocious. The fact
that the dog had been previously bitten X, Y and Z and that they had made
complaints to B are relevant.
Good faith
a) A is accused of dishonest misappropriation of property which he had found and the
question is whether when he appropriated it he believed in good faith that the owner
could not be found.
The fact that public notice of the loss of the property had been given in the place
where A was, is relevant as showing that A did not in good faith believe that the
owner could not be found.
b) A is sued by B for the piece of work done by B upon a house of which A is owner, by
the order of C, a contractor.
A’s defence is that B’s contract was with C.

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The fact that A paid C for the work in question is relevant as proving that A did, in good
faith make over to C the management of the work in question, so that C was in position
to contract with B on C’s own account and not as agent for A.
Mental and bodily feeling
a) The question is whether A has been guilty of cruelty towards B, his wife. The
expression of their feelings toward each other shortly before or after the alleged
cruelty are relevant.
b) The question is whether A’s death was caused by poison. Statements made by A
during his illness as to his symptoms are relevant facts.
Intention, knowledge and similar other states of mind are matters of cogent inquiry in
criminal cases, in some civil cases they are very material, e.g. in cases of malicious
prosecution, fraud or negligence. In the case of Mohamed Saeed Adrabi v. R (1956) 23
E.A.C.A. 512 the appellant was convicted on two counts of use of criminal force with
intent to outrage modest in respect of two boys, evidence that previously the appellant
had committed similar acts in respect of other boys was admitted by the court to show the
intention of the accuse and rebut a defence of accident or mistake.
2.11 Facts Bearing on Question Whether Act was Accidental or Intentional
Section 17 refers to the facts bearing on the question whether a particular act was
accidental or intentional and whether it was done with a particular knowledge or
intention. The facts that an act form part of a series of similar occurrence in each of the
particular person concerned is relevant if the question is whether the act is accidental or
intentional. E.g.
a) A is accused of burning down his house in order to obtain money for which it was
insured. The fact that A lived in several houses successively each of which he insured
in each of which a fire occurred and after each of which fires a received payment
from a different insurance office are relevant to show that the fires were not
accidental.
b) A is accused of fraudulently delivering to B counterfeit coins. The question is
whether the delivery of the coins was accidental. The fact that soon before or soon
after the delivery to B, A delivered counterfeit coins to C, D and E are relevant to
show that the delivery to B was not accidental.
2.12 Evidence of Course of Business when Relevant
Under section 18 when the ordinary course of a particular business is proved, the court is
asked to presume that on the particular occasion in question there was no departure from
the ordinary and general rule. For instance, if letters properly directed to C are left with
his servant it is only reasonable to presume prima facie that they reached his hands. E.g.
c) The question is whether a particular letter was dispatched. The fact that it was the
ordinary course of business for all letters put in a certain place to be carried to the
post and that the particular letter was put in that place are relevant.
d) The question is whether a particular letter reached A. The fact that it was posted in
due course, and was not returned to the sender are relevant.

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3. HEARSAY EVIDENCE
3.1 Introduction
Statement by a person not called as a witness which is offered in evidence to prove the
truth of the facts contained in the statement is hearsay and is not admissible. If however
the statement is offered in evidence not to prove the truth of the facts contained in the
statement but only to prove that the statement was in fact made is not hearsay and is
admissible.
The Evidence Act does not provide for hearsay evidence, it is a judicial term which is
used by magistrates and judges. Section 62(1) provides against the hearsay evidence in
that oral evidence must be direct.
3.2 Reasons for not admitting Hearsay Evidence
• Is not given under oath
• No opportunity of cross-examination thus you cannot test the credibility of witness
• It pre-suppose that there is a better evidence somewhere
• It has the tendency to prolong litigation
• The assessors (judges of facts) are confused when hearsay evidence is introduced
especially when it came to weigh evidence
• It is intrinsically weak because it is subject to distortion, human memory tend to fade
with passage of time and errors of transmission
The inadmissibility of hearsay evidence was held in the case of Kilongo v. R. (1958)
E.A.C.A. 152, where the accused had retained poll-tax money and then, fearing
prosecution had handed it over to one Mwinyipembe to take to Wakili Mzee refused to
accept the money, the accused handed Mwinyipembe more money telling to go back to
Mzee and offer this to him so that Mzee would refrain from reporting the matter. Mzee
gave evidence as to what had occurred and had been said to him. The appeal court held:
“The when Mzee deposed to Mwinyipembe’s coming to him with the sh. 500/-
and latte with sh. 1000/-. It was not hearsay evidence, but we think that it was
hearsay when he deposed to what Mwinyipembe had told him the accused had
told Mwinyipembe to say to him (Mzee).”
In Haji Ibrahim v. R. (1975) L.R.T.N. 56 the court said that the testimony of a police
witness about information supplied by third party who is not called as a witness is
hearsays and inadmissible.
3.3 Exception to the Hearsay rule
Under section 34 oral or written statements of relevant facts made by person:
a. Who is dead
b. Who cannot be found
c. Who has become incapable of giving evidence, or
d. Whose attendance cannot be procured without

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i. When it relates to the cause of his death

ii. When it is made in the course of business, such as an entry in books, or
acknowledgment or the receipt of any property or date of a document
iii. When it is against the pecuniary or proprietary interest of the person making it or
when it would have exposed him to a criminal prosecution or to a suit for damages
iv. When it gives opinion as to a public right or custom or matters of general custom
had arisen
v. When it relates to the existence of any relationship between persons as to whose
relationship the maker had special means of knowledge and it was made before the
question in dispute arose
vi. When it relates to the existence of any relationship between person deceased and is
made in any will or deed or family pedigree, or upon any tombstone or family
portrait and was made before the question in dispute arose
vii. When it is contained in any deed, will or other document
viii. When it is made by a number of persons and expresses feelings relevant to the
matter in question.
3.3.1 Dying declaration
According to section 34(a) statement of a person who dies, whether the death is homicide
or suicide provided it relate to the cause of death is admissible. The condition for the
admissibility of such statement is that:
• The maker of the statement must be dead. If the person making the statement
chances to live, his statement is inadmissible as a dying declaration.
• The statement must relate to the cause of death and circumstances of transaction
which resulted to his/her death.
• The cause of death of that person must be an issue in a case.
◊ Difference between Dying Declaration under Tanzania Evidence Act and
English Law (Commonwealth)
• Under the Common Law, dying declarations are only admissible in cases of
murder and manslaughter, under The Evidence Act dying declarations extends
to civil cases in which the cause of death of the person who made the statement
comes into question.
• Under the Common Law at the time of making the statement the maker must be
in a state of actual expectation of death while The Evidence Act provides that a
statement is relevant when made by a person as to the cause of his death and it
provides further that such statements are relevant whether or not they were
made under expectation of death. In the case of R. v. Muyovya bin Msuma
(1939) 6 E.A.C.A 128, the court convicted the appellant without giving
direction to the assessors on caution with which dying statements should be
received. On appeal the court said:

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“This caution is even more necessary in this country (Tanganyika)

where such statements do not depend for their admissibility as they do
in England, on their solemnity because of the declarant having a settled
belief that he is about to die and what is stated being the equivalent of
an oath. The weight to be attached to such statements in this country
must consequently be less than that attached in England.”
◊ The Cause of Death
It is required that dying declaration must relate to the cause of death of the maker
(declarant) and not the cause of another’s death. When the victim is not proved to
have died as a result of the injuries received in the incident his dying declaration
cannot be said to be the statement as to the cause of his death or to any of the
circumstances which resulted in his death. In the case of R. v. Abedi bin Kasanga
(1938) 5 E.A.C.A 120 the appellant was charged with murdering Sowedi. Bushiri in a
dying declaration stated that he (Bushiri) had been instigated by the appellant to shoot
Ali and had in fact shoot Sowedi. Mistaking him for Ali. This was held to be
inadmissible. R. v. Kayanda alias Msila s/o Mkuyu and Others (1943) 10 E.A.C.A.
117, a dying declaration by one Rubogi who was in fact murdered on the same
occasion as Mfanye for whose murder the appellants had been charged, though the
two murders were not made the subject of a single information, was held to be
inadmissible since it was not Rubogi’s death which was in question.
◊ Circumstances of Transaction
Dying declaration may be admissible if they are made as to any circumstances which
resulted in the deceased’s death. In the case of Swami v. Emperor [1939] 1 All E.R.
396, the court extended the suggestion that the statement must be made after the
transaction has taken place, that the person making it must be at any rate near death,
that the circumstances can only include the acts done when and where the death was
caused. Thus the statement may be made before the cause of death has arisen or
before the deceased has any reason to anticipate being killed.
In the case of Kabateleine s/o Nchwamba (1946) 13 E.A.C.A 164 the appellant was
convicted of the murder of his mother by setting fire to the hut in which she was
sleeping at night. The evidence against him was entirely circumstantial and consisted
inter alia of a complaint made by the deceased to a headman two days before the fire
the appellant was threatening to burn her hut because he said she had caused the
death of his father by witchcraft. The appeal court held that the complaint made to the
headman two days before the fire was admissible in evidence under section 32(1)
Indian Evidence Act (34(a) Tanzania Evidence Act as it was directly related to the
occasion of the deceased’s death and was a circumstance which resulted in her death.
In Swami’s case the court said that the circumstances must be circumstances of the
transaction, general expression indicating fear or suspicion whether of a particular
individual or otherwise and not directly related to the occasion of the death will not
be admissible. In the case of Antonio Barugahare and Others v. R [1957] E.A. 149,
the only point in the appeal was the admissibility of certain evidence by a friend of
the deceased woman. The witness gave evidence that the deceased had told her some
week before her death that the first defendant had asked her to marry him and to lend

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him some money to pay his poll tax. The appeal court held that the admission of such
statement by the trial court was irregular. It further stated that:
“The statements of the deceased indicating motive would have been rightly
admitted if made after the attack, and perhaps even if made in clear reference
to an imminently expected attack which later took place; but we think that in
the present circumstances they were neither statements as to the cause of
death nor as to the circumstances of transaction which resulted in the death.
In one sense a murder may be said to result from a long-nurtured grudge, and
the source of the grudge may be said to be a transaction which itself results in
the death; but we emphasis the requirements laid down by the Privy Coucil
that there must be ‘some proximate relation to the actual occurrence.’
Whether or not facts here alleged bear a relation to the murder, there was
certainly no proximate relation.”
Thus we see that circumstances must have some proximate relation to the actual
occurrence, though as for instance in a case of prolonged poisoning they may be
related to the dates of the actual fatal dose.
◊ Manner of eliciting the Statement
In the case of Pius Jasunga s/o Akum v. R (1954) 21 E.A.C.A. 331, among other
issues raised on appeal was the admissibility of dying declaration taken by asking
leading questions. The court said that this does not make the statement inadmissible,
but it will affect the weight to be given to it. In R. v. Mitchell (1892) 17 Cox 503, the
court said that declaration must be in the actual words of the deceased and that if
questions had been put, both questions and the answers must be given; furthermore
since questions might be leading ones, there always a very great danger of each
question being answered without their force and effect being full comprehended.
◊ Incomplete Statements
Incomplete statements are not admissible. In the case of Cyril Waugh v. R. [1950]
A.C 203, the deceased fell into a coma while making the statement and never
recovered. The court held that:
“The dying declaration was inadmissible because on its face was incomplete
and no one can tell what the deceased was about to add; that it was in any
event a serious error to admit it in part, and that it was further and even more
serious error not to point to the jury that it had not been subjected to cross-
examination.”
In the case of R. v. Charles Daki [1960] E.A. 34 the deceased was interrupted by the
doctor when he was making his statement to the police officer, whereas later he died
without completing his statement. The court held that—on the face of the recorded
statement and footnote there to the deceased was interrupted by the doctor; the
deceased might or might not have added something. Thus the statement was held to
be inadmissible. In the case of Pius Jasunga the deceased did not sign his statement
and thus the court said that since the statement was unacknowledged it was
inadmissible. “The statement was unacknowledged and there was no means of
knowing whether the deceased would have acknowledged its correctness or would
have wished to alter or add to it had he been able to do so.”

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◊ Weight
In order to test the reliability of a dying declaration, the court has to keep in view the
circumstances like the opportunity which a person on the point of death had for
observation, whether his capacity to remember the facts stated by him had not been
impaired at the time he was making the statement that the statement was made at the
earliest opportunity. The weight to be attached to a dying declaration will depend on
a number of circumstances. It is very important to determine whether or not the
declarant was really certain of his assailant. In the case of Mdiu alias Mnyambwa
Mande v. R [1965] E.A. 193 the deceased had in a dying declaration said to the
appellant “Why are you killing me?” and when the accusations had been denied, he
asked “if you did not kill me, let us shake hands.” They had then shaken hands and
the deceased had then said “if you did not kill me, God knows.” The appeal court
said:
“Could not exclude the possibility that up to the moment that the deceased
died there was a certain amount of doubt lingering in her mind. It would also
appear that those who were present and heard the declaration were not
entirely convinced by it, because before the arrival of the police no one made
any attempt, as is usual in these circumstances, to arrest the appellant…the
attack took place at night in a room lit by a feeble light and, in our view,
where the identification of the assailant was a narrow issue between the
prosecution and the appellant, a particular caution must be exercised and the
evidence of the prosecution must be so cogent as to exclude any possibility of
a doubt.”
The weight to be accorded to a dying statement must also depend to a great extent,
upon the circumstances in which it is given. In the case of Pius Jasunga, the
deceased was suffering from a terrible head wound when he made the statement was
(according to hospital employee who was present at the time) very unconscious. He
made the statement with difficult though apparently his mind was clear. Although he
spoke strongly at first he get weaker and was unable to sign the statement. The
unsatisfactory nature of the statement was held to be inadmissible because the effects
of wound may dim the memory or weaken or confuse the intellectual powers.
◊ Corroboration
Since the weight to be attached to a dying declaration under Tanzania Evidence Act is
less than that in England, evidence of such declarations falls into the class of
testimony for the acceptance of which corroboration is highly desirable. Yet it is not
to say that corroboration is always necessary to support conviction. Corroboration
would not always be necessary if the dying declaration is complete in its accusation
and there is nothing to show that the maker of the statement had anything further to
add. In the case of Eligu s/o Odel and Epong s/o Ewunyu (1943) 10 E.A.C.A 90,
the deceased had stated in his dying declaration that the two accused had attacked
him. The deceased came along a road near the second accused and was singing. This
annoyed the second accused, who bound the deceased with a rope and later after
unbinding him, beat him to death with a stick. The principal evidence against the
accused was contained in a certain statement made before his death by the deceased
to four different people as to what happened and who assaulted him.

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In the case of the first accused the deceased’s statement receives corroboration in the
evidence that prior to his death the accused’s stick had been taken from him by the
second accused and was found near the place of the first accused’s house where the
deceased met his death.
As regard second accused, he was associated with the first accused in arresting the
deceased earlier in the evening of his death for the trivial act of singing. It was held
that whilst corroboration of a statement as to the cause of death made before his death
by the deceased is desirable it is not always necessary in order to support a
conviction. To say so would be to place such evidence on the same plane as
accomplice evidence and would be incorrect. The court said:
“ In quoting this evidence our object is to show that the earlier happenings
of the evening the second accused was associated with the first accused in
such a way as to point to the second accused being the second assailant when
the deceased was later attacked by two men. It would not be reasonable to
assume that a stranger to the earlier events had identified himself with a later
attack on the deceased. Besides there is point that the deceased in his
identification of his assailants would be less likely to be mistaken than if he
had been suddenly set upon by persons with whom he was unacquainted.
Here not only were the accused known to the deceased, but he had been in
their company in circumstances we have set out earlier in the same evening,
this fact making the deceased’s statement more credible.”
Apart from exceptional cases where the statement of the deceased was admitted
without corroboration, courts have from time to time insisted on the need of
corroboration as was said in the case of Pius Jasunga:
“we have examined the decisions of this court on the subject of dying
declarations since 1935 and we have been unable to find a single case where
conviction has been upheld which was based upon a dying declaration
without satisfactory corroboration unless in Epungu’s case there was
evidence of circumstances going to show that the deceased could not have
been mistaken in his identification of the accused.”
Sometimes corroboration may be circumstantial, as was in the case of R. v. Said s/o
Abdalla alias Said s/o Mangombe. In this case a witness had seen the deceased
being pursued by a man who she could not identify carrying a panga. The deceased
named the appellant as his assailant. Corroboration was held to lie in the fact that
earlier in the day the deceased and the appellant had a dispute over the ownership of a
sheet and had been seen going off together in the direction of the place where the
deceased’s body was found, the appellant carrying a panga, a bottle and the sheet and
was wearing a cap. Later he was seen without the cap, bottle or sheet, wet with sweat
and with his eyes red.
Where a dying declaration is made in the presence of the accused, corroboration of a
dying declaration may be found in the accused’s conduct at the time. In the case of
Mibinga v. Uganda [1965] E.A. 71, the trial court found corroboration in the
accused’s conduct in the fact that on the first occasion when the deceased accused
Mibinga in his presence of being his assailant, the later remained silent.

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3.3.2 Statements Made in the Ordinary Course of Business

Section 34(b) contemplates a statement by a person whose duty it was to make such a
statement or whose business was such that statement of the kind was to be expected in
the ordinary course of things. Such statements are admissible if they are made by a
person who is dead and in the ordinary course of duty as to facts within their personal
knowledge and contemporaneously with the facts stated and without motive to
misrepresent. The words “in the ordinary course of business” are used to indicate the
current routine of business which they refer to the statement made during the course and
not of any particular transaction of an exceptional kind such as execution of a deed of
mortgage but of business or professional employment in which the declarant was
ordinarily or habitually engaged. In the case of Idi bin Ramadhani v. The Crown
Z.L.R.45, the court said:
“As said in The Henry Coxon (1878) L.R. 3 P.D 156, a declaration in the
course of duty in order to be admissible must be contemporaneous with the facts
alleged by the declarant and must be made by a person who has no interest to
mispresent those facts. Here the constable was speaking as to facts which
occurred two days prior to the date of this statement.”
In the case of R. v. Mohamed (1970) HCD 307, the prosecution sought to tender in
evidence the post mortem report of a doctor who had left the country and whose
whereabouts was unknown. The defence objected to the admissibility of the report
relying on R. v. Masalu [1967] E.A. 365. The court admitted the report under section
34(b) as it was technically admissible. On the question whether the court could use its
discretion to reject a document which is technically admissible will depend on the facts
of each case and the degree of prejudice to the accused.
The court also distinguished the present case with that of Masalu in that, in the later
case, there was apparently no evidence beside the medical report as to the cause of death.
In the present case there was substantial oral evidence as to the cause of death. The
medical report expressed in technical and medical language what eye-witnesses were
expressing in ordinary language.
In the case of Yahaya Hussein v. Ohan Transport Ltd and Others (1980) T.L.R. 58
the plaintiff sued the defendants for damages in respect of personal injuries and loss
arising out of a motor vehicle accident. In proving his case the plaintiff sought to admit a
doctor’s report made on request by the plaintiff’s advocate to prove facts stated therein
under section 34(b). The court held that:
Where a doctor makes report on request from advocate of the plaintiff such report
cannot be entries or memoranda in books or records kept in the ordinary course of
business or kept in the discharge of the doctor’s professional duty envisaged in
section 34(b) and the doctor’s report was excluded.
The report to be admissible should not have been made with a view to institution of the
case in question. In the case of Idi bin Ramadhani v. The Crown, the prosecution
sought to put in evidence a statement of a police officer who took part in the
investigation. It was held that:
“Though it may be have been the duty of the constable to make the statement
which he did, it was very clearly in the nature of a special statement made with
view to the present prosecution.”

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In the case of R. v. Magandazi and four Others (1914) 2 Z.L.R. 108 the accused were
employed in Uganda to carry loads to Congo. On a charge of theft of a part of the loads
by the accused, a letter was put in evidence written by the agent of the complainant’s
firm, when was resident in Congo and who was not called as a witness. The court held
that:
“Although it may be said to have been written in the ordinary course of business
to report loss [it] appears also to be in the nature of a special letter written with
a view to the present prosecution.”
3.3.3 Statements Against the Interest of the Maker
Section 34(c) comprises three classes of declarations against the interest of the maker;
(a) Pecuniary interest
(b) Proprietary interest
(c) Personal liberty or property by tending to charge him with a crime or to subject
him to payment of damages.
This section makes a declaration against interest admissible in evidence. The principle
upon which such statements are regarded as admissible in evidence is that a person is not
in the ordinary course of affairs likely to make a statement which is to his own detriment
unless it is true. The form of declaration is immaterial it may be verbal or written in a
deed or a will or in any other document. For the declaration to be admissible:
• The declarant must be dead
• The statement must be against his proprietary or pecuniary interest
• The declarant must have the personal knowledge of the property in interest
In the case of Sebastian P. Dias v. R. (1927) 3 U.L.R. 214, on a prosecution for
falsifying books of account, the prosecution relied on a letter written by a deceased native
clerk to the head of department charging the accused with having ordered him to make
false entries. This was admitted under section 30(3) of the Evidence Ordinance (s. 34(c)
TEA). On appeal the court said that the letters though admissible under the Ordinance
should not have been acted on without corroboration being the evidence of an
accomplice. Guthrie Smith, J. said that:
“The ground on which [a written statement made by a deceased person which if
true would have exposed him to a criminal prosecution] admissible in India (it
would not be admissible in England) is that a man is not likely to accuse himself
of a crime. Nothing could be more false; for one could imagine cases in which it
would be very much in the man’s interest to do so. In the present case the letter of
Tomas [in which Tomas before his death wrote to the head of his department
saying that the accused had instructed him to make false pay sheets[ would have
involved him in a very slight degree of criminality. It would have tended to his
promotion in the department and brought him into favour with his superiors. In
my opinion the change in the law made by the Evidence Ordinance must have
been dictated by the feeling that there might be cases in which it would be
undesirable to exclude such evidence perhaps there might but the circumstances
would have to be very unusual.”

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3.3.4 Statements Giving Opinion as to Public Right etc.

Section 34(d) provides that the statement of relevant facts made by persons who are dead,
are admissible provided such statements give the opinion of such persons regarding the
existence of any public right or custom or a matter of public or general interest. The
admissibility of declarations of deceased persons in cases of public right or customs are
generally of ancient and obscure origin and may be acted upon only at instant intervals of
time; direct proof of evidence is not therefore demanded. Such statements must have
been made before any controversy as to the right or custom arose. Public rights are those
common to all inhabitants of the country and general rights are those affecting a
considerable section of the community.
3.3.5 Statements as to Existence of Relationship
According to section 34(e) a statement relating to the existence of any relationship
between the person alive or dead is declared as relevant. However, the person making the
statement must have special means of knowledge. Conditions for admissibility:
• The statement must relate to the existence of any relationship by blood, marriage
or adoption.
• The person making the statement must have special means of knowledge about the
relationship.
• The statement must have been made before the question in dispute was raised.
3.3.6 Statements in a will or deed Relating to Family Affairs
Section 34(f) provides that statements relating to the existence of relationship between
deceased persons made before the question in dispute was raised are admissible when
they are contained in a will or deed or in a family pedigree or upon a tomb-stone. It is not
necessary that the person who made the statement should have special means of
knowledge.
3.3.7 Statements in Documents Relating to Certain Specific Transactions
Section 34(g) provides that statement contained in a deed, will or other documents which
relates to any such transaction as is mentioned in section 15 are admissible. (Section 15
—facts affecting existence of right or custom). This section includes private rights as
well as public rights.
3.3.8 Statements Made by Several Persons Expressing Feelings
According to section 34 (h), general reputation prevailing in the community and the
opinions, inferences or beliefs of individuals (whether witnesses or not) are admissible in
proof of fact. To this there are important exceptions. Witnesses in some cases are allowed
to testify to the opinions of third persons who are not upon oath, e.g. when the opinion is
that of the community. The concurrence of many voices among those most favourable
situated for knowing raises a reasonable presumption that the facts concurred in are true.
3.3.9 Evidence Given in Judicial Proceedings
Section 35 provides that the evidence given by a witness in an earlier judicial proceeding
or before any person authorised by law to take evidence is relevant in a subsequent
judicial proceeding or at a later stage of the same judicial proceeding for the purpose of

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proving the truth of the facts contained therein if certain conditions are satisfied. These
conditions are:
• The witness is dead
• When the witness cannot be found
• When he is incapable of giving evidence
• When he is kept out of the way by the adverse party
• When his presence cannot be obtained without an amount of delay or expenses
which the court considers unreasonable.
The use of secondary evidence under this section is limited by three further conditions.
These are:
• If the proceeding was between the same parties or their representative in interest
• If the adverse party in the first proceeding had the right and opportunity to cross-
examination.
• If the questions in issue were substantially the same in the first as in the second
proceeding.
The phrase “cannot be found” was discussed in the case of Ndolo v. R. (1926) 10 K.L.R.
11. In this case a witness (Ojuti) gave evidence at the inquiry before the magistrate. After
the appellant had been committed for trial Ojuti left his place of employment and for that
reason was not served with a witness summons. The judge adjourned the trial and
directed the Native Registration Department should be requested to assist. The
Department identified Ojuti employed in a farm at Kyambu. However, by that time Ojuti
had in fact left this shamba and his subsequent movements could not be traced. The trial
judge ruled that Ojuti cannot be found within the meaning of section 33 India Evidence
Act (s. 35 TEA) and directed that the deposition of Ojuti be read. On appeal the judge
said:
“ we are of the opinion that he words ‘ cannot be found’ in the section refer to
the time when the witness is sought for to attend the trial, and do not refer to the
state of affairs at some earlier period.”
On the need for cross-examination, in the case of Nasar Kanji v. R (1912) 4 E.A.P.L.R.
136 it was held that even though the accused had reserved his cross-examination and
defence in the lower court, he had not thereby lost his opportunity to cross-examination.
In the case of Cheung Shing v. R. (1956) E.A.C.A the preliminary inquiry was held at a
hospital in which the deceased was confined suffering from head injuries and in the
presence of the accused. Present at the inquiry was an officer appointed by the Attorney-
General to appear for the accused. This officer though later engaged by the accused as his
advocate, was not in fact such at the time, since the accused was unfit to give him any
instructions in this respect and the Attorney-General was not the authorised agent of the
accused to do so in his behalf. The officer’s status was therefore no more than that of
amicus curiae and any questions he put to the deponents could not therefore amount to
cross-examination. It was held that the depositions taken in a preliminary inquiry were
inadmissible on the score of lack of opportunity to cross-examine.

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3.3.10 Statements Under Special Circumstances

a. Entries in Books of Account
Under section 36, entries in books of accounts regularly kept in the course of business are
relevant though they may not be sufficient by themselves to charge any person with
liability. This section is based upon the principle that entries made regularly in the course
of business can be presumed to be accurate. In all such entries the writer has full
knowledge, there is no motive to falsehood and there is the strongest improbability of
untruth.
Though the statement made by a person in his favour, whether oral or documentary is
usually not admissible in evidence, the entries in the books of account if proved to have
been regularly kept in the course of business are admissible. In order to be relevant under
this section, the books of account must be kept regularly in the course of business; they
must be in conformity with some known system of accounting.
b. Entries in Public Records
Section 37 is based on the circumstances that in the case of public documents, entries
made in the discharge of public duty by an officer who is an authorised and accredited
agent appointed for the purpose. The law reposes such confidence in public officers that
it presume they will discharge their several trust with accuracy and fidelity.
There are three conditions to be fulfilled before the document can be admitted:
(a) The entry that is relied on must be one in any public or other official book,
register or record.
(b) It must be an entry relating to a fact in issue or relevant fact.
(c) It must be a record of fact not of opinion.
The phrase ‘or any other person in performance of a duty specially enjoined by the law
of the country’ under section 37 was discussed in the case of Dhanji Hansraji Hirji
Chandaria v. R. [1966] E.A. 246. In this case the court said that:
“Reading section 38 Kenya Evidence Act (s. 37 TEA) as a whole, we think it is
clear that ‘any other person’ means any person, not a public servant, who finds
himself under a special duty to maintain or make entries in any record of a public
or official nature…We do not think it includes members of the general public
completing forms necessary for their individual purposes, whether or not those
forms will eventually form part of the archives of any Government department.”
c. Statements in Maps, Charts and Plans
Section 38 mentions two kinds of maps and charts;
(a) Maps or charts generally offered for public sale.
(b) Maps or charts made under the authority of the Government.
The admissibility of the first kind of maps rests upon the ground that they contain the
result of inquiries made under competent authority concerning matters in which the
public are interested. The admissibility of the second class rests on the ground that being
made and published under the authority of the Government; they must be taken to have
been made by and to be the result of the study, or inquiries of competent persons.
d. Statements of Facts Contained in Laws and Official Gazettes

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Section 39 provides that Act of Parliament, any other law of the United Republic duly
promulgated or notification of the Government appearing in the Gazette are admissible
in the evidence when the court has to form an opinion as to the existence of any of these
documents. The court under section 90 is supposed to presume the genuineness of these
documents. These documents as well as all others of public nature are generally
admissible in evidence although their authenticity is not confirmed by the usual test of
truth, namely the searing and the cross-examining of the persons who prepared them.
e. Statements as to Law Contained in Books
Section 40 provides the means whereby foreign law of which judicial notice cannot be
taken by the courts may be proved. Statements contained in foreign law are presumed
under section 92 to be genuine.
In the case of Hakam Bibi v. Mistry Fateh Mohamed (1955) 28 K.L.R. 91 the issue
was whether bodies of law such as Islamic law and Hindu law are foreign law. Cram Ag.
J. said:
“Both applied English law the applied Indian Contract Act recognise the
international private law rule that a contract may have as its proper law the law
of a foreign country. Assuming that immigrants intend any contract they make
inter se to be governed by, say, the law of Pakistan, then the Kenya court will, so
far as possible, give effect to this intention. Section 38 of the India Evidence Act,
1872, (s. 40 TEA) provide the rule of evidence to discover this law. The section
speaks of the law of any country but this has been interpreted to mean the law of
any foreign country. But there is no sovereign state of Islam. Mohammedan law is
at one and the same time the law of many foreign countries, yet differently
interpreted. Generally it is a personal religious law. It is not a law peculiar, say
to Pakistan but to professing Mohammedans wherever they may be domiciled.
Mohammedan law is not in my view foreign law properly speaking.”
The foreign law must be proved and also under section 48 the evidence of experts on this
matter to be admitted.
Statements on foreign law contained in books are only admissible if the book has been
printed or published under the authority of the government concerned. In the case of
Hirji Devachand Ramji v. Attorney-General of Kenya (1956) 23 E.A.C.A 20, the
issue was on the Hindu law of adoption. The court said:
“…refers to a passage in Mulla’s Principles of Hindu Law…Strictly speaking this
quotation is inadmissible for the book is not a government publication, but cases
are cited by the author as his authority and these would be admissible under
section 38….”

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4. PROOF
4.1 Direct/Oral Evidence
According to section 3, oral evidence means all statements which the court permits or
requires to be made before it by witnesses, in relation to matters of fact under inquiry.
This is the evidence which is given direct by the witness and can be both things and
documents.
Section 62(1) requires that oral evidence must in all cases whatever be direct. When the
evidence refers to:
• Fact which could be seen, then it must be the person who saw such fact should give
evidence.
• Fact which could be heard, it must be given by the person who claims to have heard
it.
• Fact which could be perceived by any other sense or manner, it must be the person
who perceived it by the sense or that other manner.
• Opinion or grounds on which that opinion is held, it must be the person who hold
such opinion or who holds it on those grounds.
The proviso to subsection 1 provides that the opinion of experts expressed in treaties
commonly offered for sale or grounds on which such opinions are held, may be proved
by production of such treaties. However, before such production, it must be shown that:
• The author of such treaties is dead, or
• Cannot be found, or
• Has become incapable of giving evidence, or
• Cannot be called as witness without undue delay or expenses.
Section 62(2) provides that where the evidence refer to the existence of condition of any
material thing other than a document, the court may require the production of such
material thing for inspection.
4.2 Documentary Evidence
According to section 3 document means any writing, handwriting, typewriting, printing,
photostat, photograph and every recording upon any tangible thing, any form of
communication or representation by letters, figures, marks or symbols or by more than
one of these means, which may be used for the purpose of recording any matter provided
that such recording is reasonably permanent and readable by sight.
Documentary evidence is defined by section 3 to mean all documents produced as
evidence before the court.
4.3 Types of documents
1. Public documents
2. Private documents

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4.3.1 Public documents

Under public documents we have those which form the acts or records of the act, like the
acts of:
(a) The President of the United Republic,
(b) The official bodies and tribunals,
(c) The public officers, whether legislative, judicial or executive.
Another category is the public records kept in the United Republic of private documents.
4.3.2 Private documents
According to section 84 all documents other than public documents are private
documents.
4.4 Primary and Secondary Evidence
Generally under section 63, the contents of documents may be proved by the production
of the document (primary evidence), or by copies or oral accounts of the contents
(secondary evidence). Primary evidence is evidence which may be given first. Secondary
evidence is evidence which may be given in the absence of the better evidence which the
law requires to be given first, when a proper explanation is given of the absence of that
better record.
4.4.1 Primary Evidence
According to section 64 (1) primary evidence means the document itself produced for
inspection of court.
• Document executed in several parts
Where under section 64(2) the document is executed in several parts, each part is a
primary evidence of the documents. Sometimes each party to a transaction wishes for the
sake of convenience to have a complete document in his own possession, thus a
document is written out as many times as there are parties, each document is executed by
all parties. Any one of the document may be produced as primary evidence of contents of
the document.
• Document executed in counterparts
Where a document is executed in counterparts, each counterpart being executed by one or
some of the parties only, each counterpart is primary evidence as against the party
executing it. A document is executed in counterpart when there are two parties to a
transaction. E.g. contract between A and B, the document is copied twice and A alone
sign one copy, while B alone sign the other copy. A hand B a document signed by him
and B hands A a document signed by him. Then as against A, the document signed by A
is a primary evidence, while as against B a document signed by B is a primary evidence.
• Documents made in one uniform process
Where under section 64(4) a number of documents are all made in one uniform process
e.g. printing, lithography or photography, then each is primary evidence of the contents
of the rest. However, when they are all copies of a common original, they are not primary
evidence of the contents of the original. E.g. a carbon copy made by one uniform process

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of the certificate of a doctor (e.g. as to the condition of a rape victim) given in the
performance of professional duty is a primary evidence.
4.4.2 Secondary Evidence
Section 65 describe what constitute secondary evidence. Secondary evidence is evidence
which may be given under certain circumstances in the absence of that better evidence
which the law requires to be given first. Secondary evidence includes:
• Certified copies (s. 65(a)) e.g. a photocopy of an original is secondary evidence of
its contents, though the two have not been compared, it is proved that the thing
photographed was the original.
Certified copies are defined under section 83. The correctness of certified copies is
presumed under section 88.
• Copies made by mechanical process (s. 65(b)) e.g. a copy compared with a copy of
a letter, made by a copying machine is secondary evidence of the contents of the
letter if it is shown that the copy made by the copying machine was made from the
original.
• Copies made from the original (s.65(c)) copies made from the original or copies
compared with the original are admissible as evidence. A copy transcribed from the
original, but afterwards compared with the original is secondary evidence, but the
copy not so compared is not secondary evidence of the original, although the copy
from which it was transcribed was compared with the original.
• Counterparts (s.65(d)) when a document is executed in counterpart, each party
signing only the part by which he is bound, each counterpart is the best evidence
against the party signing it and his privies. As to the other party it is only secondary
evidence.
• Oral statements (s.65 (e)) secondary evidence includes oral accounts of the contents
of a document given by some person who has himself seen the original document.
Written statement of the contents of a copy of a document. The original of which the
person making the statement has not seen cannot be accepted as secondary evidence.
However, it is not necessary that a person who is called as a witness to give evidence
as to a lost document must have himself read it, he will b a competent witness if has
physically seen the document and the contents has been read out and explained to
him. Secondary evidence of a document which is lost or difficult to trace may be
adduced in two ways:
(i) By oral evidence of persons who were present when the document was
executed
(ii) By a certified copy of the original
4.5 Proof of Documents by Primary Evidence
Section 66 is based on the best evidence rule i.e. documents must be proved by primary
evidence except as otherwise provided. This section has to be read together with sections;
63, 64, 67 to 69.

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4.6 Proof of Document by Secondary Evidence

Section 67 enumerates the seven exceptional cases in which secondary evidence is
admissible; secondary evidence may be given of the contents of a document in civil as
well as in criminal cases. The contents of a document may be proved by secondary
evidence under the following circumstances:
4.6.1 Original shown in possession but not produced (s. 67(1) (a)
This paragraph deals with three situations under which secondary evidence may be given;
a) When the original is in the power or possession of the person against whom the
document is sought to be proved.
b) When it is in the possession or power of any person who is out of reach or not
subjected to the process of the court.
c) When it is in the possession of any person legally bound to produce it but fails to
produce it after notice mentioned in section 68 is given to him.
4.6.2 Existence of original admitted in writing (s. 67(1) (b)
Under section 67(1)(b) when the existence, condition or contents of the original have
been proved to be admitted in writing by person against whom it proved or by his
representative in interest, secondary evidence can be given. However, this paragraph has
to be read tighter with section 24 which provides that oral admissions as to the contents
of a document are not relevant unless and until the party supposing to prove them shows
that he is entitled to give secondary evidence of the contents of such document.
4.6.3 Original destroyed or lost
Section 67(1) (c) consists of two parts;
a) When the original document had been destroyed or lost, he can produce
secondary evidence.
b) When a person offering evidence of its contents cannot for any other reason not
arising from his own default or neglect produce it in reasonable time.
4.6.4 Original not easily moveable
Section 67(1) (d) covers things not easily moveable, things fixed in the ground; or
buildings (e.g. notices painted on walls, tablets in buildings, tombstones, monuments, or
marks on boundary stones or trees). Secondary evidence is admissible in such cases on
account of great inconvenience and impracticability of producing the original.
4.6.5 When the original is public document
Section 67(1) (e) intends to protect the originals of public records from the risk to which
they would be expressed by constant production in evidence. Secondary evidence in the
case of public document mentioned in section 84.
4.6.6 When the original is a document whose certified copy is legally permitted
According to section 67(1) (f) certified copies are admissible as secondary evidence. The
provisions of sections 85, 87 and 95 may be read together with section 67(1) (f).
4.6.7 Originals consisting of several accounts or cannot conveniently be examined

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Section 67(1) (g) is designed to save public time. Where the fact to be proved is the
general result of the examination of numerous documents and not the contents of each
particular document and the document as such cannot be conveniently examined in court,
evidence may be given under this paragraph as to the general result of the documents by
a person who has examined them and who is skilled in the examination of those
documents. In the case of John Babtist Marcus D’Sa and Another v. R. [1957] E.A.
627, two bank clerks, were jointly tried and convicted of fraudulent false accounting and
of stealing from their employer. Bank inspector gave evidence of his searches in books of
accounts of the bank and magistrate in his judgment made reference to an unproved
documentary exhibit. They appealed on the ground that neither the original accounts
referred in the inspector’s evidence nor copies were produced and accordingly the
inspector’s evidence being secondary were inadmissible and that he unproved exhibit to
which the magistrate referred was also in admissible.
Section 63 of the Evidence Ordinance (s. 67 Tanzania Evidence Act) sets out
exceptions to the general provisions in section 62 (s. 63 TEA) which requires
documents to be proved by primary evidence. The subject matter of the
inspector’s evidence; its purpose and his capacity fulfilled the requirements of
section 63(g) (s. 67(g) and (5) TEA) and accordingly this secondary evidence
was rightly admitted.
In the case of Edward Dick Mwakamela v Republic 1987 TLR 122, the magistrate
admitted as secondary evidence a buff-copy of a pay-in-slip as secondary without
summon bank officials to testify on the banking of the money. The High Court said that
for secondary evidence to be admissible, it must satisfy the provisions of section 67 of
the Evidence Act 1967 on the admissibility of secondary evidence.
4.7 Proof of Execution of Document
According to section 69, if a document is alleged to be signed or to have been written by
any person, the signature or writing must be proved in that person’s handwriting. Section
75 provides that court may direct any person present in court to write any words or
figures for the purpose of enabling the court to compare the words or figures so written
with those alleged to have been written by the person.
Section 79 provides that a document required by law to be attested can not be used as
evidence unless at least one attesting witness, if available has been called to prove its
execution.
According to section 71, if no attesting witness can be found, then it must be proved that
the attestation of at least one of the attesting witnesses to such a document is in his
writing and that the signature of the person executing it is in the handwriting of that
person.
Section 72 provides that the admission of a party to an attested document of its execution
by himself, it sufficient proof of its execution as against himself whether or not the
document is required by law to be attested.
If the attesting witness denies or does not recollect the execution of the document its
execution may be proved by other evidence. An attested document not required by law to
be attested may be proved as if it were unattested. (Sections 73 and 74)

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4.8 Presumption as to documents

The Evidence Act requires courts to presume that certain types documents which come
before them as evidence are genuine. Such presumption is however rebuttable by
evidence to the contrary.
• Genuineness of certified copies
Section 88(1) the court may presume as genuine every document purporting to be a
certificate, certified copy or other document which:
a) Is by law declared to be admissible as evidence of any particular fact.
b) Purports to be certified by a public officer in the United Republic.
c) Is in the form and purports to be executed in manner directed by the law.
Furthermore under subsection 2 of section 88 the court is required to presume that any
officer by whom the document purports to be signed, held at the time the official
character which he claims in the document.
• Documents produced as record of evidence
According to section 89 when a document is produced purporting to be a record of
memorandum of evidence given in a judicial proceeding or before an officer authorized
by law to take such evidence and purporting to be signed by the judge or a magistrate or
any such officer, the court shall presume that;
b) The document is genuine,
c) Such evidence was duly take, and
d) Any statements as to the circumstances in which it was taken purporting to be
made by the person signing it are true.
• Regarding Gazettes, Newspapers, Private Acts of National Assembly and other
documents
According to section 90 official gazettes of the United Republic or of Revolutionary
Government of Zanzibar, newspapers, private Acts of National Assembly and other
documents required by law to be kept by any person and are produced from proper
custody are presumed to be genuine.
• Regarding Maps or plans made by authority of Government
According to section 91, maps or plans made by authority to be made or published on the
authority of the government are presumed to be so made or published and to be accurate;
however maps or plans made for the purpose of any legal proceedings must be proved to
be accurate.
• Regarding collections of laws and reports of decisions

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According to section 92, books containing laws and judicial reports purporting to be
published under the authority of the government of any country are presumed to be
genuine.
• Regarding private documents executed outside the United Republic
Section 93 provides that, the court will presume private document purporting to be
executed outside United Republic was duly executed and such execution duly
authenticated if:
b) It purports to be authenticated by a magistrate, registrar or under the seal of the
court or by a notary public under his signature and seal of office if the document
is executed in Uganda, Kenya, Malawi and Zambia.
c) Where the document executed in Uganda, Kenya, Malawi or Zambia and which
affects or relates to property not exceeding 5.000/- purports to be appealed or
endorsed on such document a statement signed by a magistrate or a justice of
peace:-
i) That a person executing the document is known to him,
ii) That two other persons known to him have separately testified him that the
person executing the document is known to each of them.
d) For document executed in any other place outside the United Republic, if it
purports to be authenticated by the signature and seal of office:
i) Of a foreign service officer of the United Republic or diplomatic
representative of a Commonwealth country in that place,
ii) of any Secretary of State, Minister, Under-Secretary of State or any other
person in such foreign place, who shall be shown by the certificate of the
foreign service officer of the United Republic or a diplomatic representative
of a Commonwealth country in that place, to be duly authorised under the law
of that place to authenticate the document.
• Regarding powers of attorney
Section 94 provides that a document purporting to be a power of attorney is to be
presumed executed and authenticated. It is presumed that every document called for and
not produced after notice was attested, stamped and executed as required by law. (s.95)
• Regarding certified copes of foreign judicial records
The court according to section 95 may presume that the certified copy of a judicial record
of a foreign country is genuine.
• Regarding books, maps and charts
Section 96 provides that the court may presume any book to which it may refer to
information on matter of public or general interest and any published map or chart the
statement of which are admissible fact and which is produced for inspection was written
and published as the book, map or chart purports.
• Regarding telecommunication messages

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The court may presume that a telegram message as received corresponds with the
message as delivered for transmission, as provided under section 97.
• Regarding documents less than twenty years old
If any document purporting or proved to be not less than twenty years old is produced
from proper custody, the court may presume that what purports to be in the handwriting
of a particular person, including the signature is in his handwriting and, in the case of a
document executed or attested, that it was duly executed and attested as purported.
4.9 Exclusion of Oral by Documentary Evidence
• Evidence of terms of contracts, grants and other dispositions of property reduced
to from of document
Section 100 deals with terms of contracts, grants etc. reduced to form of document.
Under section 100(1)
ii) When the terms of (a) a contract, (b) a grant (c) any disposition of property
have been reduced to the form of a document; or
iii) When any matter is required by law to be reduced to the form of a document
then;
a) The document itself
b) Secondary evidence of its contents,
must be put in evidence.
The first part (i.e. i) refers to transactions voluntarily reduce to writing. The second (i.e.
ii) refers to the document itself.
E.g.
(i) If a contract is contained in several letters, all the letters in which it is contained must
be proved.
(ii) A gives B a receipt for money paid by B oral evidence is offered of the payment the
evidence is admissible.
(ii) if a contract is contained in a bill of exchange, the bill of exchange must be proved.
(iii) a contract in writing with B for the delivery of indigo upon certain terms. The
contract mentions the fact that B had paid A the price of other indigo contracted for
verbally on another occasion. Oral evidence is offered that no payment was made for
the other indigo. The evidence is admissible.
(iv) if a bill of exchange is drawn in a set of three, one only need be proved.
For example where the disposition of property is a matter required by law to be reduced
to writing, oral evidence in proof of the terms of the disposition is inadmissible whether
or not it has actually been reduced to writing. In Damodar Jamnads and Others v.
Noor Mohamed Valji [1961] E.A. 615 it was held that the Money-lenders Ordinance of
Kenya which states that no contract for payment of money lent is enforceable without a
signed note or memorandum in writing of the contract, placed upon the money-lender the
onus could only be discharged by the production of the note or memorandum itself

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(except in cases where secondary evidence would be admissible) and that oral evidence
of such note or memorandum was inadmissible.
The document may not be itself in issue, but merely be used as evidence to prove some
fact, it may for example be a receipt for payment of money and in such cases oral
evidence of payment may be given.
The document may contain reference to matters outside the actual terms of the contract
and in such cases oral evidence of these matters may be admissible. (s.100 (6))
The date on a document is not a term of the contract, and therefore oral evidence to prove
the date on which the contract was written is admissible, so too oral evidence is
admissible to prove the date of any alteration to a document.
Exception to the above rule:
• When a public officer is required by law to be appointed in writing and it is shown
that any particular person has acted as such officer, the writing by which he was
appointed need not be proved.
• Wills admitted to probate in the United Republic may be proved by the probate. (s.
100 (2)).
• Exclusion of Evidence of Oral Evidence
Section 101 deals with several grounds of exclusion of extrinsic evidence. Under this
term:
i. When the terms of (a) a contract (b) a grant (c) any other disposition of property have
been reduced to the form of a document, or
ii. When any matter required by law to be reduced to the form of a document has been
proved by the production of the document or by giving secondary evidence of its
contents,
no evidence of oral agreement or statement shall be admitted as between the parties to
any such document or their representative in interest, for the purpose of (i) contracting
(ii) varying (iii) adding to, or (iv) subtracting from its terms.
E.g.
(i) A agrees absolutely in writing to pay 200,000/= on 2 nd July. The fact that at the same
time an oral agreement was made that the money should not be paid till 15 th July cannot
be proved.
(ii) A orders goods of B by letter on which nothing is said as to time of payment and
accepts the goods on delivery. B sues A for the price. A may show that the goods were
supplied on credit for a term still unexpired.
(ii) A applies to B for a debt due to A by sending a receipt for the money. B keeps the
receipt and does not send the money. In a suit for the amount A may prove this.
This section only applies, upon the fact of it the written agreement appears to contain the
whole contract if the parties have intended to reduce all the terms of the contract into
writing, then no parol evidence is admissible but if they intended only to reduce to
writing a portion of the terms of the contract then they are entitled to give parol evidence
of terms which they did not intend to reduce to writing.

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The preclusion in this section applies only to parties and their representative in interest,
while section 108 specifically permits persons who are not parties to a document to give
evidence of any fact tending to show a contemporaneous agreement varying the terms of
the document.
Despite the terms of this section oral evidence is admissible to establish that a party who
signed a contract is in fact acting as agent for another. In Rashid Nanji v. Salim bin Issa
(1918)7 E.A.P.L.R. 127, the issue was whether or not evidence is admissible of the acts
and conduct of the parties as showing their real intention when the contract was entered
into. Hamilton, C.J. having referred to the fact that there was some difference in opinion
in the Indian Courts on this point, held that the trial court had been wrong to admit such
evidence to show that what purported to be a sale, was in fact a mortgage. Woodfoff and
Ameer Ali, in their book Law of Evidence (9th ed) pp. 643-652 examined this issue in
detail and concluded that:
“The true rule would therefore appear to be that any evidence, whether of
conduct or otherwise, tendered for the purpose of contracting, varying,
adding to, etc a document is excluded by the terms of [section 92 (s. 101)]
unless it can be shown to be admissible under the provisions as on the ground
of fraud.”
There are a number of important provisions to the general rule excluding evidence of an
oral agreement—section 101 (a)—(f).
i) Any fact which would (i) invalidate any document, or (ii) entitle any person to any
decree or order relating thereto may be proved such as fraud, intimidation, illegality,
failure of consideration, mistake in fact or law.
ii) Any separate oral agreement (i) as to any matter on which the document is silent, or
(ii) which is not inconsistent with its terms, may be proved. If it is clear on the face of
a contract that the written document does not contain the whole of the agreement
between the parties, the terms not embodied in the writing may be proved by oral
evidence. In Jos Hansen and Soehne A.m.b.H v. Jetha Ltd [1959] E.A. 563 it was
held that a contract of guarantee in which a space for the signature of the fourth
surety had been left blank, was silent as to whether the signatures of the four
guarantees was a condition of guarantee and that the oral statement of the three
sureties that their signatures alone were sufficient security was not a subsequent
modification of the guarantee but a collateral oral term, and that evidence of this was
therefore admissible.
iii) Any separate oral agreement consisting a condition precedent to the attacking of any
obligation under the document may be proved.
iv) Any subsequent oral agreement to rescind or modify any such contract, grant or
disposition of property, may be proved except when such contract or grant (i) is
required to be in writing or (ii) has been registered. It should be borne in mind that
this provision is irrelevant in a case where, subsequent to the making of a contract an
oral assurance is given by one of the parties which when acted upon by the other rises
an equity in his favour, since the very basis of the argument on equitable estoppel is
that there was no subsequent oral agreement.

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v) Any usage or custom by which incidents not expressly mentioned in any contract are
usually annexed to such contracts, may be proved if they are not repugnant to or
inconsistent with its express terms.
vi) Any fact which shows in what manner the language of the document is related to
existing facts may be proved. This proviso applies only where the document is not
perfectly plain and its terms require explanation. In Mohamed Roshan v. Santa
Singh [1959] E.A. 717 was held that the proviso was applicable in the following
circumstances: a contract was entered into for certain excavation work to be done at
the rate of sh. 15 per 100cu. ft. At some stage the figure 17 was substituted for 15 in
the appellant’s copy of the agreement and the alteration was signed by the
respondent. In fact the work fell into two stages, the appellant undertaking to carry
out the second stage on similar terms, but at a higher rate of payment. It was sought
to prove that the altered figure in the agreement applied only to the second stage.
Forbes, V. P. held that under proviso 6, evidence is admissible to show how the
language of the altered document was related to the existing fact.
• Evidence to explain patent ambiguity
Section 102 provides that no evidence is admissible to show the meaning of or to supply
the defects in a document when the language used is on its face ambiguous or defective.
E.g.
(a) A agrees in writing to sell a dog to B for Tshs. 100.00/-. Evidence cannot be
given to show which price was to be given.
(b) A deed contains blank. Evidence cannot be given of facts which would show how
they were meant to be filled.
• Evidence against application of document to existing facts
Section 103 provides that when the language is plain in itself i.e. does not admit any
ambiguity and applies to the existing facts, no evidence is permissible to show that it was
not meant to apply to such facts.
E.g.
A sells to B, by deed, “My estate at Tanga containing 1.000 acres”. A has an estate at
Morogoro containing 1.000 acres. Evidence may not be given of the fact that the estate
meant to be sold was one situated at a different place and of different size.
In the case of North Eastern Ry. Co. v. Hastings 1900 AC 260, Lord Halsbury
observed the following “The words of a written instrument must be construed
accordingly to their natural meaning, and it appears to me that no amount of acting by
parties can alter or qualify words which are plain and unambiguous. So far as I am aware,
no principle has ever been more universally or vigorously insisted upon than that written
instrument, if they are plain and unambiguous must be construed according to the plain
and unambiguous language of the instrument itself.
In R Gale (1941) Ch. 209, the testator gave his property to and unmarried woman with
whom he was living “during her widowhood”. Her identity was clear but as she was
unmarried she could not be the testatory widow after his death and the expression
“during her widowhood” was unmeaning and hence it was ignored and the bequest
upheld.

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Where the language in its ordinary sense properly applies to the facts without any
difficulty, evidence to show that it bears a different meaning will be rejected, as it
contradicts the document.
• Evidence as to latent ambiguity
Section 104 provides that when language of a document is plain in itself but is
unmeaning in reference to existing fact, evidence may be given to show that it was used
in a peculiar sense. It is based upon the maxim falsa demonstration non nocet (a false
description does not vitiate the document). E.g. if A sells to B “My house in Kibaha” and
if A has no house in Kibaha but has a house in Morogoro of which B has been in
possession since the execution of the deed, these facts may be proved to show that he
deed related to the house in Morogoro.
• Application of language which can apply to one only of several persons
Section 105 provides that when the language of a document, though intended to apply to
one person or thing only, applies equally to two or more, and it is impossible to gather
from the context which was intended, an equivocation arising e.g. when the same name
or description fits two person or things accurately; when the same name or description
fits two objects equal but subject to a common accuracy, provided that he inaccuracy be a
mere blank or applicable to no other person or thing.
E.g.
(i) A agrees to sell to B for 100.000/- “My white dog”. A has two white dogs. Selling of a
white dog is a fact which is clear and unambiguous because “a white dog” means one
dog. As the vendor has two white dogs the ambiguity arises as to which dog was intended
to be sold. Thus evidence may be given of facts which show which one of them was
meant.
(ii) A agrees to accompany B to Chang’ombe. To which Chang'ombe A agreed to
accompany B is ambiguity, evidence may be given of facts showing whether
Chang’ombe in Temeke or Chang’ombe in Tabata was meant.
This section is based on maxims: Veritas nominis tollit evrerem demonstrationem; nihil
facit error nominis cum de corporeconstat; fals demonstration non nocet cum ae corpore
constant (a false description does not vitiate a document).
• Application of language to one of two of facts
This section is an extension of rule in section 104. under this section i.e. 106 the language
used in the document applies partly to one set of existing facts and partly to another set of
existing facts, but if all the facts are taken together they would not apply to either. In such
cases extrinsic evidence may be given to show to which of the two, the language was
meant to apply. E.g. if A agrees to sell to B “My land at Z in the occupation of Y” and A
has land at Z but not in the occupation of Y and A has land in the occupation Y but it is
not at Z, evidence may be given to show the land was intend to be sold. This section is
based on the maxim falsa demonstration non nocet.
• Meaning of illegible characters, etc.
Section 107 enables the party to give evidence to show the meaning of illegible or not
commonly intelligible characters, foreign, obsolete, technical, local and regional

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expressions of abbreviations and of words used in a particular sense. E.g. A, a sculptor

agrees to sell to B “all may mods”. A has both models and modeling tools. Evidence may
be given to show which he meant to sell. This illustration is based on the case of Goblet
v. Beechey 3 Sim 24: 9LJ Ch. 200, where the question was as to the meaning of ‘mod
tools for carving’ which were the subject of a bequest by a sculptor. The opinions of
statuaries was admitted to prove that there were no such tools as modeling tools for
carving and that the word ‘mod’ would be understood by a sculptor as an abbreviation for
models.
• Variation given by third parties
Section 108 enable strangers to give evidence of any facts tending to show a
contemporaneous agreement varying the terms of the original document e.g. and B make
a contract in writing that B shall A certain cotton, to be paid for on delivery. At the same
time they make an oral agreement that three month’s credit shall be given to A. this could
not be shown as between A and B, but it might be shown by C if it affects his interest.

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5. ADMISSIONS
5.1 Definition of Admissions
Admissions are defined under section 19 as statements oral or written made by a party to
a proceedings or his representative in interest which are closely related to the fact in issue
or relevant fact such that when taken together with other material facts they may lead to
prove or disprove one’s liability.
According to Black’s Law Dictionary, admission is a voluntary acknowledgement made
by a party of the existence of certain facts which are inconsistent with his claim in an
action.
Stephen in Stephen’s Digest1 defines admission as:
“An admission is a statement, oral or written, suggesting an inference as to any
fact in issue or relevant or deemed to be relevant to any such fact, made by or on
behalf of any part to any proceeding.”
An admission is a statement of fact which waives or dispenses with the production of
evidence by conceding that the fact asserted by the opponent is true.
Admission must be in favour of the opponent and therefore against the interest of the
maker, for an admission by a party in his own favour is not an admission.
Admissions may not in themselves form the basis of a conviction or a judgment in favour
of a party to a proceeding but may bear a very high evidential value.
Admissions are not conclusive evidence; however, the practical effect of admission is to
shift the burden of proof from the maker to rebut the admission.
5. 2 Classification of Admissions
5.2.1 Judicial Admissions (Formal Admissions)
Judicial admissions are formal admissions made by a party during the proceedings of a
case. Judicial admissions are conclusive and fully bind the party who makes them. E.g.
where accused admit certain facts in his written statement of defence or where a party to
a suit admit to settle a particular issue outside a court or never to raise it in court. In the
case of Sifael Mrisho v. R [1984] TLR 151, the appellant admitted the offence of driving
a motor vehicle on the public road with defects. On appeal the issue was whether the
accused’s plea could be used as evidence to the charge of causing death through careless
driving. The court said that words spoken by an accused his plea count can be used as
evidence against him.
5.2.2 Extra-judicial Admissions (Informal Admissions)
Extra-judicial admissions are informal admissions not appearing on the record of the
case. Extra-judicial admissions are also binding on the parties against whom they set up.
However unlike judicial admissions they are binding only partially and not fully, except
in cases where they operate or have the effect of estoppel in which case they are fully
binding and may constitute the foundation of the rights of the parties. (See section 26)
1
7th Edn, Article 15, p. 24

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5.2.3 Implied Admissions

Admissions may be implied by conduct. E.g. in a civil suit where the landlord increases
the rent and the defendant is sued for increased rent, if the defendant did not object to the
increased rent and he paid a few installments later on if he wishes to challenge the
increased rent, he may be estopped from doing so because he admitted the fact by his
conduct. See also section 70 of the Law of Contract Act Cap. 345.
5.2.4 Express Admissions
These may be oral or written made to attorney or counsels. They may be contained in
documents e.g. letters, depositions, affidavit, plaints, deeds, receipt, etc.
5.3 Ingredients of Admissions
• Admissions must be clear and certain. If the admission is capable of two
interpretations, an interpretation unfavourable to the person making it should not
be put in his admission. If the statement amounting to admission is ambiguous, an
opportunity must be given to the maker of the statement to explain or clarify it
before it can be taken into consideration as an admission.
• For admission to be binding on the party, it must be very specific and should not
be vague it is also binding on a person in matters of facts and not on point of law.
• Admission must be voluntarily made so as to have a substantive evidential value.
An admission made in ignorance of legal rights or under duress cannot bind the
maker of the admission.
• Admission should be accurate specific statement of the person making it and in his
own words. Inference drawn by someone else cannot be admission.
• Admissions must be made on the basis of personal knowledge of the facts stated.
An admission is of evidential value only to the extent that its maker has personal
knowledge of the matter it contains. If a man admits something of which he know
nothing it is of no real evidential value.
• Admissions should be taken as a whole and not in part. E.g. when a person makes
a statement that he owes some money and later that person say that he had
returned some money, the whole statement must be taken into consideration. In the
case of Zarina Akbaral Sherif and Another v. Noshir Pivosesha Sethna and
Others [1963] E.A. 239, the appellants put in evidence an extra-judicial statement
made by the second respondent to the police in connection with the accident the
subject matter of the suit, and his deposition taken by a magistrate in a criminal
case in which the first respondent was charged with two offences under the Traffic
Ordinance arising out of the accident. The court held that:
When an admission is tendered against a party, he is entitled to have proved
as part of his adversary’s case, so much of the whole statement or document
containing the admission as is necessary to explain the admission, although
such other parts may be favourable to him; the usual practice is to tender
the whole statement or documents containing the admission; accordingly
there could be no objection to the whole of the statements being admitted in
evidence.

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On the requirement for the admission of the whole statement Sarker said:
“The first important rule with regard to admissions is, the whole statement
containing the admission must be taken together; for though some part of it
may be favourable to the party, and the object is only to ascertain what he
has conceded against himself, and what may therefore be presumed to be
true, yet, unless the whole is received, the true meaning of the part which is
evidence against him, cannot be ascertained. But though the whole of what
he said at the sometime, it does not follow that all the parts of the statement
should be regarded as equally deserving of credit.”2
5.4 Effect of Admissions
• An admission constitutes a substantive piece of evidence in the case and for that
reason can be relied upon for proving the truth of the facts incorporated therein.
• An admission has the effect of shifting the onus of proving to the contrary on the
party against whom it is produced with the result that its casts an imperative duty
on such party to explain it. In the absence of satisfactory explanation it is
presumed to be true.
5.5 Statement by Party to Suit, etc.
According to section 20, the following persons can make admissions:
(a) Party to the proceeding
(b) Agent authorised by such party
(c) Part suing or sued in a representative character, making admission while holding
such character
(d) Person who has any proprietary or pecuniary interest in the subject-matter of the
proceeding during the continuance of such interest.
(e) Person from whom the parties to the suit have derived their interest in the subject-
matter of the suit, during the continuance of such interest.
5.6. Admission by Party to Proceedings or his Agent (section 20(1))
What is admitted by a party to be true must be presumed to be true unless the contrary is
shown, but before this proposition can be invoked, it must be shown that there is a clear
and unambiguous statement by the party such as will be conclusive unless explained. A
statement made by a party in a former suit between the same or different parties is
admissible. The proceeding be civil or criminal.
An admission made in a previous suit or an arbitration in the proceeding is binding on the
party making it even if the suit is later withdrawn. As regard quashed conviction and
instances where the trial is ordered to stat de novo the admission made falls with it.
5.7 Admissions Made by a Person in Representative Character (section 20(2))
Parties suing or sued in a representative capacity are trustees, executors, administrators,
managers, guardians, attorneys, corporations, government officers, etc. It is important
that such persons must make the statement in their character of persons so interested. A
2
Sarker on Evidence, 14th Ed. 311

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statement made by a trustee, executor, etc is not binding against him when sued as a
trustee, executor, etc if it was made before he become a trustee, executor, etc.
5.8 Admissions by Party Interested in Subject Matter (section 20(3) (a))
When several persons are jointly interested in the subject matter of a suit an admission of
any one of these person is receivable not only against himself but also against the others,
whether they be all jointly suing or sued, provided the admission relates to the subject-
matter in dispute and be made by the declarant in his character of a person jointly
interested with the party against whom the evidence is tendered. E.g. in the case of
partnership, an admission by one partner made in a representative character, may be
evidence against the other partner(s). However, an admission made by one of the several
parties in fraud of others will not bind the others.
5.9. Admission by Person from whom Interest is Derived (section 20(3) (b))
Statement made either by parties interested or by person from whom the parties to the
suit have derived their interest is admissible only if they are made during the continuance
of the interest of the person making the statement. E.g. the admissions of a former owner
of property after he had ceased to have any interest in it are not evidence against the party
in possession.
5.10. Admissions by Persons whose Position must be Proved as against Party to Suit
(section 21)
This section i.e. 21 forms an exception to the rule that statements made by strangers to a
proceeding are not admissible against the parties. Ordinarily statements by strangers to a
proceeding are not relevant as against the parties. This section is an exception to the
general rule confined in section 20, thus making it possible to take in the evidence of
admission of third persons who are strangers. E.g
(a) A undertakes to collect rents from B
B sues A for not collecting rent due from C to B
A statement by C that he owed B rent is an admission, and is relevant fact as
against A, A denies that C did owe rent to B
(b) A and B jointly borrowed money from C
C brought an action against A alone.
A raises an objection saying that B should also be joined as a party as there is joint
liability on him
An admission by B while borrowing the amount as to his joint liability is relevant
between A and C though B is not called as a witness.
5.11. Admissions by Persons Expressly Referred to by Party to Suit (section 22)
Section 22 forms another exception to the rule that admissions by strangers to a suit are
not relevant. Under this section, admissions of a third person are also receivable in
evidence and are binding upon the party who expressly referred another to him for
information in regard to an uncertain or dispute matter.
E.g. the question is whether a horse sold by A to B is sound.
A says to B; “Go and ask C, C knows ass about it.” C’s statement is an admission.

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Phipson3 observed:
“When a party refers to a third person for information or opinion on a given
subject, the information or opinion so given is receivable against the referrer as
an admission. And it will be conclusive where there has been an agreement to
refer, or where the position of the party tendering the evidence has been altered
thereby.”
According to this section there are three parties concerned with the dispute:
(a) the party refers the matter
(b) the opposite party
(c) the party to whom the reference is made
This section should not be interpreted as giving the force of an admission to statements
made by witness as against the party who calls him.
“where a party agrees to be bound by what a third person says, or refers an
opposite party to a third person for information or an opinion on a given subject,
the third person’s reply is admissible against the party so agreeing or referring;
and if the reference has been made by agreement, it will be conclusive.”4
There must be an express reference for information in order to make the statement of a
person referred to be admissible.
5.12 Proof of Admissions against Persons Making them (section 23)
Section 23 lays down as a general rule that admissions are relevant and may be proved
against the person who makes them or his representative in interest. E.g.
The question is between A and B is, whether a certain deed is or is not forged.
A affirms that it is genuine. B that it is forged.
A may prove a statement by B that the deed is genuine, and B may prove the statement
by A that the deed is forged, but A cannot prove a statement by himself that the deed is
genuine, nor can B prove a statement by himself that the deed is forged.
Sir James Stephen observed:
“The general rule with regard to admissions, which are defined to mean all that
the parties or their representative in certain degrees say about the matter in
dispute, or facts relevant thereto, is that they may be proved as against those who
made them, but not in their favour. The reason of the rule is obvious. If A says, ‘B
owes me money’, the mere fact that he says so does not even tend to prove the
debt. If the statement has any value at all, it must be derived from some fact
which lies beyond it; for instance, A’s recollection of his having lent B the money.
To that fact of course, A can testify but his subsequent assertions add nothing to
what he has to say. If, on the other hand, A had said ‘B does not owe me
anything’ this is a fact which B might make use and which might be decisive of
the case.”5
3
13th ed. P. 401
4
Halsbury’s 4th Ed. Vol. 17, para 74, p. 57
5
Introduction to Evidence Act, p. 164-165

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Section 23 states two positions:

(a) An admission would be relevant and may be proved against the maker of it and
his representative in interest.
(b) An admission can be proved on behalf of the maker, but it is subject to three
exceptions. These exceptions are:
5.12.1 Maker of the Admission is dead (section 23(a))
Under this section, an admission of a person may be proved by or on behalf of the person
making it when such admission is of such a nature that if the person making it were dead
it would be relevant as between third parties under section 34. e.g.
A, the captain of a ship, is tried for casting her away
Evidence is given to show that the ship was taken out of her proper course.
A produces a book kept by him in the ordinary course of his business showing
observations alleged to have been taken by him from day to day, and prove these
statements, because they would be admissible between third parties, if he were dead
under section 34(b).
5.12.2 Admissions made in Particular Mental or Physical State (section 23(b))
According to section 23(b) statements narrating state of mind or body under section 16
indicating the state of mind or body may be proved on behalf of a person narrating them.
However, such statements should have been made at or about the time when such state of
mind or body existed. Section 16 merely declares that such statements are relevant. This
paragraph i.e. section 23(b) shows that such statements may be proved on behalf of the
person making them, notwithstanding the general rule that persons cannot make evidence
for themselves by what they choose to say. E.g.
A is accused of receiving stolen goods knowing them to be stolen.
He offers to prove that he refused to sell them bellow their value.
A may prove these statements, though they are admissions, because they are explanatory
of conduct influenced by facts in issue.
5.12.3 Admission Relevant Otherwise than Admission (section 23(c))
Section 23(c) provides that an admission may be proved by or on behalf of the person
making it if it is relevant otherwise than as an admission. In this, section 8 may be
referred to i.e. facts which though not in issue, are so connected with a fact in issue, as to
form part of the same transaction, are relevant whether they occur at the sometime and
place or at different times and place i.e. as part of res gestae. E.g.
A is accused of fraudulently having in his possession counterfeit coin which he knew to
be counterfeit.
He refers to prove that he had asked a skilful person to examine the coin as he doubted
whether it was counterfeit or not, and that that person did examine it and told him it was
genuine.
A may prove these facts because they are explanatory of conduct influenced by facts in
issue.

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5.13 Oral Admissions Regarding Contents of Documents

General under section 24, oral admissions as to contents of a document are not relevant.
In principle, the contents of a document which is capable of being produced must be
proved by the instrument itself and not by parol or secondary evidence. However, this
section contemplates giving evidence of oral admissions as to the contents of a document
on two grounds:
• A party who seeks to rely on such admissions show that he is entitled to give
secondary evidence of the contents of such a document according to the provisions of
sections 67 and 68, e.g. where the original is lost or destroyed or is in possession or
power of the adverse party and due notice under section 68 to produce has been given.
• Oral admission as to contents of a document may also be given when the genuineness
of the document is in question. When the question of the genuineness of the document
is raised, it may be proved by: being attest by the person who executed it under
section 72; a witness may be called to attest the document under section 70; by
comparison of the handwriting under section 75 and by getting expert opinion under
section 47.
5.14 Admissions in Civil Cases, when Relevant
Section 25 excludes the admission of parties in civil cases under two circumstances:
• If the admission is made upon an express condition that evidence of it is not to be
given.
• Under circumstances from which the court infers that the parties agreed that evidence
of the admission should not be given.
This section is based on the maxim “Interet rei publical at sit finis liticem” (it is the
interest of the State that there should be an end to litigation).
This section also protects communications made ‘without prejudice’. Confidential
overtures of pacification and any other offers or propositions between litigating parties,
expressly or impliedly made without prejudice, are excluded on grounds of public policy.
In the case of Walker v. Wilsher (1889) 23 QBD 335 (CA) Lord Mansfield observed:
“All men must be permitted to by their peace, without prejudice to them, should
the offer not succeed; such offers being made to stop litigation, without regard to
the question whether anything is due or not. If, therefore, a defendant on being
sued for £ 100 should offer the plaintiff £ 20, at the same time stating that he
made such offer ‘without prejudice’, evidence of the offer would not be
admissible in evidence; for it is irrelevant to the issue; it neither admits nor
ascertains any debt, and is no more than saying that he would give £ 20 to be rid
of the action. An offer made ‘without prejudice’ cannot be looked at even upon a
question of costs.”
Under subsection 2 the advocate will not be prevented from giving evidence of any
communication made in furtherance of any illegal purpose of any fact showing that crime
or fraud has been committed since his employment.

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6. CONFESSIONS
6.1 Definition of Confession
Confession is defined under section 3(1) (a)-(d) to mean
(a) words or conduct, or a combination of both words and conduct, from which,
whether taken alone or in conjuction with the other facts proved, an inference may
reasonably be drawn that the person who said the words or did the act or acts
constituting the conduct has committed an offence; or
(b) a statement which admits in terms either an offence the person making the
statement has committed an offence; or
(c) a statement containing an admission of all the ingredients of the offence with
which its maker is charged; or
(d) a statement containing affirmative declarations in which incriminating facts are
admitted from which, when taken alone or in conjuction with other facts proved,

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an inference may reasonably be drawn that the person making the statement has
committed an offence.
A confession within the context of criminal law is one which admits in terms the offence
charged. It is one which admits all the essential elements or ingredients of the offence.
An admission of one or only some of the ingredients of the offence is not sufficient.
“the true test is whether the statement is such that in the absence of any explanation or
qualification and in the particular circumstances it points to the guilty of the maker. Thus
such statements as “I killed” or “I took the money”, unaccompanied by any exculpatory
words, and uttered in relation to a person who has died of unnatural causes or of missing
funds, as the case may be, are, in our view, indicative of guilty and therefore confession. 6
6.2 Conditions for the Confession
• Information must have come from the accused. Accused covers a person accused of an
offence, whether or not he was accused of the crime when he made a confession.
• The information must lead to the discovery e.g. I have killed and hidden the knife in
the house. When searched and recovered, it is confession.
• The statement must be relevant to the fact or things discovered. In Swami’s case, the
court said “a statement which admitted terms or elements constituting an offence is a
confession.” This draws a distinction between confession and admission, an admission
however incriminating cannot amount to confession.
6.3 Classification of Confessions
6.3.1 Judicial Confession
This is a type of confession that is made before the magistrate or in court in the course of
the proceedings i.e. unequivocal plea of guilt. In this type the accused person admits the
commission of the crime. This confession is taken by the magistrate during the
preliminary examination taken in writing before the trial began. It should be noted that in
the plea of guilty the accused is allowed to change his plea because once the plea is
entered, the court will convict the accused person. This is unlike extra-judicial confession
where a special trial may be preferred if the accused person retract his confession of
which he/she is charged.
6.3.2 Extra-judicial Confession
This confession is made by an accused person elsewhere other than before the magistrate
or in court. Extra-judicial confession if voluntary can be relied upon by the court along
with other evidence in convicting the accused.
The effect of proof of confession is to shift the burden of proof to the accused to disprove
the alleged allegations. In practice, once the confession is sought to be admitted by the
prosecution the defence side will strive to throw it out by challenging the statement itself.
6.4 Rules Regarding Confession
6.4.1 Admissibility of Confessions Made to Police Officers
Prior to 1980, confessions made to police officer were not admissible. This is because;
the Evidence Act found it way into Tanzania from India (India Evidence Act). The
6
Bampamyki s/o Buhile v. R [1957] E.A. 473

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reason was that the powers of police are often abused for the purpose of exhorts
confession by oppression. It is very often that the police will use tortuously means to
obtain confession. That is why confession made to police officer before 1980 was
inadmissible while those made to private person was admissible. However, in 1980 vide
Act No. 19 section 14, section 27 Tanzania Evidence Act was amended to make
admissible confessions made to police officer.
Who is a police officer is defined under section 3(1) to mean a member of the police
force of or above the rank of corporal. Thus for the confession made to police officer to
be admissible it must be made before a police officer of or above the rank of corporal.
It is very important that the police officer who takes a confession should provide his
rank. In the case of Gervas Kilongozi v. R [1994] TLR 39, the appellant was convicted
on the confession he made to a police officer whose rank was not shown on the evidence.
On appeal the court said that:
“We are satisfied that there is nothing to show that the police officer to whom the
appellant made the confession was of the rank required under section 3 of the
Evidence Act, 1967; In the circumstances the confession was inadmissible in
evidence.”
A confession made before a crowd and a police officer happen to be a member of that
crowd is admissible. In the case of Director of Public Prosecutions v. Nuru Mohamed
Gulamrasul [1988] TLR 82, the issue was whether a confession made to a police officer
and another civilian during search and interrogation was admissible. The court said that
the admission made by the respondent and heard by reliable witnesses was sufficient by
itself to have founded a conviction of unlawful possession of Government Trophies.
Basing on the spirit of section 27, the confession of an offence other than the one charged
will still be the confession for the purposes of the relevant offence. In the case of
Bampamyki s/o Buhile v. R [1957] E.A. 473 the court said—the word ‘confession’ in
section 25 India Evidence Act (section 27 TEA) means a confession of any offence and
should not be confined to a confession of the specific offence with which an accused may
ultimately be charged.
According to section 27(2), the onus of proving that the confession was voluntarily made
is on the prosecution. In the case of Njuguna s/o Kimani and Others (1954) 21
E.A.C.A 311 it was held that it was “incumbent upon the prosecution to prove
affirmatively that such confessions were voluntarily made and were not obtained by
improper or unlawful questioning or other methods.” The court further said that: the onus
is upon the prosecution to prove affirmatively that a confession has been voluntarily
made and not obtained by improper or unlawful questioning or other improper methods
and that any inducement to make the same had ceased to operate on the mind of the
maker at the time of making.
Section 27(3) deals with voluntariness of confessions. All confessions induced by threat,
promise or other prejudice held by a police officer or any person in authority is not
admissible since it was made involuntary. A person in authority is a person who has
authority to interfere in the matter in inquiry and also include those persons who are
involved in arrest, detention, investigation and prosecution and also those person who has
interest in the matter in inquiry e.g. employer, master of the accused person. In the case
of Shihobe Semi and Another v. R [1992] TLR 330, the issue was whether a village

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chairman is a person in authority as provided under section 27(3). The court said that a
village chairman is a person in authority under section 27(3) and so a confession made to
him is involuntary if the court believes that it was induced by any threat, promise or other
prejudice. In the case of R. v. Hassan Jumanne [1983] TLR 432, the accused was
convicted of housebreaking. The only evidence against the accused upon which the trial
court based its conviction was a confession made by the accused to a police sergeant
during interrogation. The accused alleged that he was beaten severely and was threatened
with further beating during interrogation unless he surrendered the stolen money. A
witness gave evidence supporting this allegation. The court on revision said that a
confession made involuntary to a police officer cannot be the basis of a conviction.
Mere belief by the accused person that the person to whom he is making the confession is
a person in authority is not sufficient to make that person to be a person in authority. The
threat, promise or inducement need not be express; it may be implied by the conduct of
the person taking it from the person who made it. In the case of Mwangi s/o Njoroge v.
R (1954) 21 E.A.C.A, the court said that the words “you had better think whether you
are going to tell me or not” contained an implied threat which would have rendered
inadmissible any statement obtained in consequence of it.
Any extra-judicial statement by the alleged accused must be cautioned. In the case of
Balbir Sain Joshi v. R (1951) 18 E.A.C.A 228, the court laid down rules to guide police
officer when taking confession:
• Where a policeman is trying to discover whether or not an offence has been
committed, he may ask questions to any one who is the suspect whether or not the
later is in police custody.
• As soon as the policeman has reasonable ground for suspecting a person, he must
caution him first before putting questions to him, “you are not obliged to say anything
unless you wish to do so, and what you say may be put in writing and put in
evidence.”
• Once a person is charged or informed that he will be prosecuted, the only question
which may be put to him are those necessary for preventing or clearing up any
ambiguity in a previous statement made by the accused person.
• Where two or more persons are charged with the same offence, the statement made by
another person or with persons so charged should not be put to the co-accused in such
a manner that they invite a reply unless the other accused voluntarily want to make a
reply.
These rules are not rules of law but are mere administrative rules, thus if not properly
complied with, the court may still proceed to consider voluntariness and not the manner
in which the confession was extracted. In practice the courts however, have been strict to
abide these rules by the police, thus seems to elevate these rules from merely rules of
practice to rules of law.
6.4.2 Confession Made before Magistrate
Section 28 provides that a confession made freely and voluntarily in the immediate
presence of the magistrate or justice of peace is admissible. Once the statement is made
in the immediate presence of the magistrate or justice of peace will be admissible even if
the magistrate justify that prior to the confession, the accused was threatened or induced,

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thus the presence of the magistrate or justice of peace will secure the voluntariness of the
confession.
6.4.3 Confession Caused by Inducement, Threat or Promise
The principle of receiving confession is on the presumption that no person would
voluntarily make a statement which is against his interest unless it is true.
According to section 29, a confession by an accused is irrelevant if it is caused by (a)
inducement (b) threat (c) promise. The inducement threat or promise should have (a)
reference to the charge against the accused (b) proceed from a person in authority (c)
sufficiently given the accused person reasonable grounds for supposing that by making
the confession he would gain any advantage or avoid any evil of a temporal nature in
reference to the proceedings against him. In the case of R. v. Sang [1979] All E.R 1222,
Lord Diplock said that:
“the underlying rationale of this branch of the criminal law, though it may
originally have been based on ensuring the reliability of confessions is, in my
view, now to be found in the maxim, memo debet proderese ispsum, no one can
be required to be his own betrayer, or in its popular English mistranslation ‘the
right to silence’.”
In another case of Ibrahim v. R [1914] AC 599, the court said:
“It has long been established as a positive rule of English criminal law that no
statement by an accused is admissible in evidence against him unless it is shown
by the prosecution to have been a voluntary statement in the sense that it has not
been obtained from him either by fear of prejudice or hope of advantage exercised
or held out by a person in authority.”
In the case of Masalial s/o Mtoba v. R [1982] TLR 131, Katiti, J. said that:
Section 29 TEA has introduced a new dimension in the admissibility of
confession; in addition to the test of voluntariness, the test of whether or not the
inducement or torture was likely to affect the truth of the confession has been
induced so that if despite torture or undue influence, the truth content of the
confession is not affected, mere allegation of torture will not render the
confession automatically inadmissible.
We see from the above case that for such confession to be admissible, two tests must be
carried out;
• The court has to satisfy itself that the confession was voluntary in which the
admissibility of the same causes no problem.
• If there are allegations of torture, the same court has to be satisfied that despite or
notwithstanding the torture, the truth of the confession was not affected.
In the case of Josephat Somisha Maziku v. R [1992] TLR 227, the appellant was
convicted of stealing by public servant, on the strength of confession made to
Sungusungu and a police officer. On appeal he contended that his confession to the
Sungusungu was extracted by threats and with violence. In deciding the appeal the High
Court said:

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While it is trite law that the condition precedent for the admissibility of a
confession is its voluntariness, a confession is not automatically inadmissible
simply because it resulted from threats or promise, it is inadmissible only if the
inducement or threat was of such a nature as was likely to cause an untrue
admission of guilt.
6.4.4 Confession Made after Threat, Inducement or Promise has been Removed
Section 30 makes it possible for a confession to be relevant provided such confession is
made after the impression caused by any inducement, threat or promise has been fully
removed. Under this section in order to treat a confession relevant, the court from the
facts and circumstances of each case has to come to a definite conclusion that the
impression caused in the mind of the accused to make a confession by inducement, threat
or promise has been totally removed. As said above, the onus is on the prosecution to
satisfy the court by clear evidence that the impression caused by any such inducement,
threat or promise has been fully removed from the mind of the accused.
In considering if the inducement was brought to an end, Wigmore 7 said that five
questions need to be asked and answered;
(a) Must it be shown clearly that an improper inducement once offered, was brought to
and end
The general principle is universally concede that the subsequent
ending of an improper inducement must be shown, i.e. it is
assumed to have continued until the contrary is shown.
(b) Are there any situations in which this showing will be regarded as impossible, and
thus the inducement, once made, vitiates any future confession of that person
There is nothing permanently irrevocable in an improper
inducement; whether it has been brought to an end, as all
conceded, as always open to inquiry.
(c) Can the same person who has offered the inducement possibly put an end to it so as
to make admissible a confession afterwards made to himself?
Yet, it seems never to have been decided specifically whether the
same person may put an end to an inducement of his own
creating. There is no reason why he cannot.
(d) Are confessions made subsequently, but to a person different from the one offering
the inducement to be treated as not made under the inducement or must it be shown
to have been negatived by the second person?
(e) What suffices, in general to end inducement?

The circumstances which make it clear that the inducement had
been entirely negatived must of course very with the facts of each
case. It is, in words of an English Judge, “merely a question of
7
3rd Edn., section 853, 854 and 855

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degree”. It is impossible to lay down a general rule and it is

useless in each case to employ individual rulings as precedents.
Phipson8 observes
“if the impression produced by the promise or threat is clearly proved to have
been removed, e.g. by lapse, by an intervening caution given by some person of
superior but not of an equal or inferior authority to the person holding out the
inducement a confession subsequently made will be admissible. Conversely if
the effect of a caution has worn off, the confession may be rejected.”
In Halsbury’s Laws of England9 it is stated:
“A statement otherwise admissible may not be received if it is influenced by an
inducement made to obtain a previous statement; thus, if the threat or promise
under which the first statement was made still persist when the second is made,
the second statement will be inadmissible. Only where the time which elapses
between the making of two statements, the circumstances and the giving of any
caution are such that it can be said that the original threat or inducement has been
dissipated will the second statement be admitted as being voluntary.”
In determining whether an inducement has ceased to operate, the nature of such
inducement, the time and circumstances under which it was made the situation of the
person making it, will be taken into consideration by the court.
In the case of Joseph Somisha Maziku v. R [1992] TLR 227, the court said that:
It is a principle of evidence that where a confession is, by reason of threat,
involuntary made, and is therefore inadmissible, a subsequent voluntary
confession by the same maker is admissible, if the effect of the original torture or
threat has before such subsequent confession, been dissipated and no longer the
motive force behind such subsequent confession.
6.4.5 Relevance of Information Received from Accused Person in Police Custody
Section 31 deals with information received from the accused person while under police
custody. According to this section, it does not matter whether the information amount to
confession or not so as to be relevant.
The intention of this section is to admit evidence of facts or objects discovered as a
consequence of statement made by the accused person while under police custody.
For this section to apply, three conditions must be met:
• The person making the statement must be accused and must be in the custody of the
police, therefore, and accused person who is on bail is not covered by this section.
• The statement or information must lead to the discovery of a relevant fact or a
material object and the person furnishing the information must have the personal
knowledge of whereabout of the fact or material object concealed, i.e. the fact or
object must be the consequence and the statement must be the cause of discovery.
8
13th Edn., p. 435, para 22-26
9
4th Edn., Vol. 11 p. 234 para 412

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• The fact or object must relate distinctly to the statement of the accused and the offence
charged.
This section (i.e. 31) is an exception to section 27 which demand that for a confession
made to the police officer to be admissible must have been made voluntarily. Under
section 31 the phrase “so much of such information” i.e. the object or fact discovered
must relate to the confession even if the confession was made under torture. The main
interest of this section is on the object or fact discovered which relate distinctly to the
information.
The broad ground for not admitting confession made to a police officer under
inducement, threat or promise is the danger of admitting false confession, but the
necessity of exclusion seems to disappear when the truth of the confession seems to be
guaranteed by the discovery of the fact or object by the information given by the accused.
The principle seems therefore to be that confession by the accused is supported by the
discovery of the act it may be presumed to be true.
The object of this section is to admit evidence which is relevant to the matter under
inquiry, namely, the guilt of the accused and not to admit evidence which is not relevant
to the matter. The discovery of a material object is of no relevancy to the question
whether the accused is guilty of the offence charged against him, unless it is connected
with the offence. It is therefore, the connection of the thing discovered which the thing
discovered may be established by evidence other than the statement leading to the
discovery but that does not exclude proof of the connection by the statement itself.
6.4.6 Confession not necessarily Rendered Inadmissible Because of Deception,
Promise of Secrecy, etc.
Under section 32, if confession is otherwise relevant it does not become irrelevant merely
because certain circumstances referred to in this section. Under section 29, if the
confession is caused by any inducement, threat or promise relating to the charge and
proceeds from a police officer or a person in authority, it will not be relevant. Under this
section, a relevant confession does not become irrelevant merely because it was made
under:
• A promise of secrecy
• In consequence of a deception or artifice practised on the accused
• When he was drunk
• Because it was elicited in answer to a question
• Because no warning was given that he was not bound to say anything and that
whatever he might say would be used as evidence against him.
The words “if confession…is otherwise relevant” indicate that before the provisions of
this section can be invoked it must appear that the confession is admissible under the
preceding sections of the Evidence Act. If for any of the reasons mentioned in section 27,
29 and 30 the confession is inadmissible, then there is no question of applying the
provisions of section 29 at all. This section therefore, assumes that there is no bar to the
admissibility of the confession in question arising from any of the said earlier provisions

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and it then proceeds to invalidate or negative other possible objections or bars that may
be raised against its admissibility.
Statements Made under Promise of Secrecy
In the case of R. v. Shaw (1884) 6 C&P 372, A was in custody on a charge of murder. B
a fellow prisoner said to him: “I wish you would tell me how you murdered the boy-pray
split.” A replied: “Will you be upon your oath not to mention what I tell you?” B went
upon his oath that he would not tell. A then made a statement. It was held that this was
not such an inducement to confess as would render the statement inadmissible.
Statement Made under Deception
In R. v. Derrington (1826) 2 C&P 418, the accused asked the turnkey of the gaol in
which he was locked to put a letter into the post for him, and after his promise to do so,
the accused gave a letter addressed to his father, and the turnkey instead of putting it into
the post, transmitted it to the prosecutor. It was held that the letter was admissible in
evidence against the accused notwithstanding the manner in which it was obtained.
Statement Overheard
Where the police overheard by means of a hole in the prison wall, the accused making a
confession to a co-prisoner, it was held that the confession was admissible. 10 In a case
where the prisoner made a statement in one room without noticing the presence of police
in another room who overheard the same, it was held to be admissible. 11 The statement of
the prisoner was held to be admissible when it was overheard while the prisoner was
muttering something to himself, or saying something to his wife or to some person in
confidence.12
Statement Made in Sleep
Statements made by a person in sleep are not receivable in evidence.
Statement When Drunk
A statement made by an accused person when he is drunk is receivable in evidence. If a
police officer gives an accused person liquor in the hope of saying something and he
makes any statement, that statement is not rendered inadmissible in evidence.13
Statement Made Without Having been Warned
In view of section 32, if the confession is otherwise relevant, it does not become
irrelevant merely because the accused was not warned that he was not bound to make
such confession and that evidence of it might be given against him.
6.4.7 Confession Implicating Co-accused
Section 33 is an exception to the general rule that confession can only be admitted
against the maker. This section allows the confession by one person to be admitted
against a co-accused provided that the following conditions are fulfilled:
(a) There must be a joint trial for the same offence, e.g. where the accused (A) is
charged with receiving stolen property knowing it to be stolen under section 311
10
R. v. Boughton, 70 JP Rep. 508
11
R. v. Sageena, 7 WR Cr. 56
12
R. v. Simona (1834) 6 C & P 540
13
R. v. Spilsbury (1936) 7 C & P 187

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of the Penal Code, with the actual thief (B) under section 258(1) and 265 of the
Code, it cannot be said that they are being tried jointly together for the same
offence, but with distinct offences. Thus a confession made by A cannot be
lawfully considered against B.
(b) The joint trial must be permissible (legal) in law. If for any cause the accused
who made the confession cannot be legally tried with the accused against whom
the confession is to be used, the court should not attach any value to the
confession.
(c) The confession must appear to implicate the maker of the statement to the some
extent as to the co-accused.
The object of this section is that where an accused person unreservedly confess his own
guilt and at the same time implicates another person who is jointly tried with him for the
same offence, his confession may be taken into consideration against such other person
as well as against himself. When a person admits his guilt to the fullest extent and
exposes himself to the pains and penalties provided therfor, there is a guarantee for his
truth. However, this is a very weak guarantee, for a confession may be true so far as its
maker is concerned but may be false and conducted through malice so far as it affects
others.
In the case of R. v. Mikaeri and Others (1920) 2 U.L.R., the court said:
“It has been held in India that the weakness of the guarantee afforded by self-
implication and the dangerous and exceptional character of the evidence require
that this evidence should be construed very strictly and that no weight is to be
given to it, unless it is corroborated by independent testimony. A confession made
by the accused against a co-accused is not, strictly speaÍSng, eviden^) áithin the
meaning of section 3 of the Ordinance as it is not made by a witness, so that it is
not even the evidence of an accomplice on those uncorroborated testimony alone
it is, general speaking, unsafe to convict. I am clearly of opinion that a conviction
based on the confession of a co-accused alone would be bad.” Per Carter, C. J.
It is improper to treat a confession of a co-accused as the basis of the case against the
accused and merely to look for corroboration. In the case Gopa s/o Gidemebanya and
Ors (1953) 20 E.A.C.A 318, which was approve by the High Court in the case of Ally
Fundi v. R [1983] TLR 210 the court said that:
“…..a confession can only be used as lending assurance to the evidence against
the co-accused, evidence which only falls short by a very narrow margin of the
standard of proof necessary for conviction.”
The same view was expressed in the case of Karanya s/o Njonji and Ors v. R (1953) 20
E.A.C.A. 324 where the court said:
“We are quite satisfied…………..from our study of the Indian cases, that it is
incorrect to regard a confession made by one accused in an extra-judicial
statement as a basis for a case against a co-accused, and to hold that with some
corroboration it is safe to convict. On the contrary what is needed is independent
evidence from a trustworthy source, which when linked and supported by the
confession of the co-accused, removes beyond any reasonable doubt the question
of innocence.”

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According to section 33(2), a conviction cannot solely be based on the confession of a

co-accused. There must be other evidence. In the case of Asia Iddi v. R [1989] TRL, the
appellant was convicted on the strength of a co-accused’s confession together with
independent testimony of witnesses who were in one way or another involved in the
transaction. On appeal the court held that, conviction cannot be based solely on a
confession of a co-accused. There must be, in addition, other independent testimony to
corroborate it. In the case of Bushiri Amiri v. R [1992] TLR 65, the court said that, the
evidence of a co-accused is on the same footing as that of an accomplice, that is it is
admissible but must be treated with caution and as a matter of prudence, would require
corroboration and that it would be unsafe to found a conviction of the appellant on the
uncorroborated evidence of the co-accused.
The distinction between accomplice evidence admissible under section 142 and evidence
admissible under this section must be clearly born in mind. The position is clearly
explained in the case of Ezera Kyabanamaizi and Ors v. R [1962] E.A. 309 where the
court said:
“None of the appellants gave evidence on oath at the preliminary inquiry or at
trial. Had they done so at the trial their evidence on oath could properly have
been taken into account as accomplice evidence. Their statements not on oath,
however, are not ‘accomplice evidence’………At best such statements can only be
‘taken into consideration’ against a co-accused and only used to supplement an
otherwise substantial case against the accused person…..they can never be the
basis for a conviction as, on proper direction, accomplice evidence can. Further,
statement cannot be considered at all against a co-accused unless there has been
a full admission of guilt in the statement.”
6.4.8 Retracted/Repudiated Confession
Retracted confession occurs where the accused, having made a confession later at his
trial retract it, usually by maintaining that it was not true having been procured from him
as the result of ill-treatment or the threat of ill-treatment.
Repudiated confession occurs where the accused maintain that he never made the
confession at all, or that the record, probably through faulty translation, does not
represent what he actual said. In the case of repudiated or denied confession, provided
that the court was satisfied that the accused did in fact made the confession, it would be
reasonable to infer that it was denied because of its truth and corroboration would not
normally be necessary.
In the past it was in general been maintained that although the confession is admissible,
provided the court is satisfied that it was voluntary nevertheless, the court must look “for
corroboration as a matter of practice, if not of law, to assist it in determining which of
the two stories told by the accused is likely to be the truth.”14
This rule however has been modified from time to time and is now settled that there may
be circumstances in which corroboration is not necessary. In Tuwamoi v. Uganda
[1967] E.A. 84 Duff Ag V-P, stated:
“The present rule then as applied in East Africa, in regard to a retracted
confession, is that as a matter of practice or prudence the trial court should
14
Gathungu s/o Migwe and Anor. v. R [1953] E.A.C.A

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direct itself that it is dangerous to act upon a statement which has been retracted
in the absence of corroboration in some material particular, but that the court
might do so if it is fully satisfied in the circumstances of the case that the
confession must be true.”
Duff Ag. V-P questioned the validity of the basis of distinction between
repudiated and retracted confessions pointing out that the distinction was made
before it has been accepted that corroboration was not invariably necessary in the
case of retracted confession and that, in view of the present rule regarding species
of confession, it was “difficult to accept that there is any real distinction in
principle between a repudiated and retracted confession.” Both types of
confession must be accepted with caution and corroboration will usually be
necessary, but the court may find that it is satisfied without corroboration that the
confession cannot be true.”15
In the case of Hemed Abdallah v. R [1995] TLR 172 the High Court convicted the
appellant of murder on the basis of his retracted confession. Before convicting the court
warned itself of the danger of basing the conviction on an uncorroborated retracted
confession. On appeal the appellant argued that the trial court’s conviction be faulted
because the learned trial judge did not give reasons why he relied on the uncorroborated
confession. It was held by the Court of Appeal that:
Generally it is dangerous to act upon a repudiated or retracted confession unless it
is corroborated in material particulars or unless the court, after full consideration
of the circumstances, is satisfied that the confession must but be true
Once the trial court warns itself of the danger of basing a conviction on
uncorroborated retracted confession and having regard to all the circumstances of
the case it is satisfied that the confession is true, it may convict on such evidence
without any further ado;
It is not a requirement of the law that reasons have to be given for the trial court's
finding that there is no danger in accepting a retracted confession;
The learned Trial Judge found no danger in founding a conviction on the
confessional statement because he was satisfied that the confession was true.
In the case of Hamis Athuman and Two Ors v. R [1993] TLR 110 the court said:
The three appellants were jointly charged with and convicted of murder and were each
sentenced to death. They appealed against both conviction and sentence complaining,
inter alia, that the Trial Court admitted in evidence and convicted the appellants on the
basis of the alleged confessions of the appellants which confessions had been repudiated
or retracted.
Although the appellants in their defences at the trial repudiated or retracted their
confessions once the Trial Court found those confessions to be true it was entitled to base
conviction on them;
Conviction of the appellants was right as it was based on the repudiated or retracted
confessions of the appellants which the Trial Court found to be true.
15
Tuwamoi v. Uganda [1967] E.A. 84

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7. PRODUCTION AND EFFECT OF EVIDENCE

7.1 Burden of Proof
According to section 110, the burden of proof is on the person who desires the court to
give judgment in his favour (the alegator). According to this section, there are two
categories to burden of proof; legal (persuasive) burden of proof and evidential burden of
proof.
7.2.1 The Legal (Persuasive) Burden of Proof
It is the burden of proof as a matter of law and pleading, the burden of establishing a case
whether by preponderance of evidence or beyond reasonable doubt.16 The burden of
proof remains constant throughout the trial. The incidence of the burden of proof on
different issues may lie in different places, and issues may rise or fall according to the
facts proved but on the analysis of issues the legal burden will not change, it is the
burden of establishing the facts and contentions which will support a party’s case.
In criminal cases this burden lies upon the prosecution which, in order to win the case, it
must establish by production of evidence that the accused has beyond reasonable doubt,
committed the offence with which he is charged. In the case of Mohamed Said Matula
v. R [1995] TLR 3, the court said:
Upon a charge of murder being preferred, the onus is always on the prosecution to
prove not only the death but also the link between the said death and the accused,
the onus never shifts away from the prosecution and no duty is cast on the
appellant to establish his innocence.
In civil cases, the burden lies on the party who would lose if no evidence at all were to be
produced, i.e., in order to win the case, he must establish his case on balance of
probabilities (preponderance of evidence). In most civil cases, this burden of proof lies
upon the plaintiff since it is the one who asserts that certain facts are so. In some cases,
the defendant may admit the main facts set out in the plaint by the plaintiff but contends
that there are other facts which provide an answer to some or all the allegations of the
plaintiff. In such a case the burden of proof lies upon the defendant to establish the truth
of these facts.
7.1.2. Evidentiary Burden of Proof
This is the burden of proof in the sense of adducing evidence. This burden shift from one
party to another as the trial progress according to the balance of evidence given at any
particular stage, this burden rests upon the party who would fail if no evidence at all or
no further evidence, as the case may be, was adduced by either side. 17 E.g. if in the course
of the trial there is a set of facts which arises a prima facie inference that certain accident
was caused by negligence on the part of the accused. The issue will be decided in favour
of the complainant if the accused fails to displace evidence. In this case the burden is on
the accused. This burden may shift to and fro from one party to the other as each side
may produce a prima facie case in its favour which can only be rebutted by fresh
evidence from the opposing side.
16
Phipson on Evidence, 13th Edn., page 44, para 4-03
17
Joseph Constantine Steamshep Line Ltd v. Imperial Smelting Corporation Ltd (1945) AC 154

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7.2. The Prima Facie Case

Prima facie case is a phrase which is commonly used after the closure of the prosecution
case. According to section 230 of the Criminal Procedure Act, Cap. 20 R.E. 2002, the
prosecution must establish its case by sufficient evidence which can warrant conviction
unless challenged by the accused. According to the case of Sunderjin v. R (1971) HCD
No. 316, before an accused can be called upon to make his defence, the prosecution must
establish prima facie case. Prima facie is evidence in which a reasonable tribunal
properly directing its mind to the law and the evidence could convict if no defence or
explanation is given by the accused.
7.3 Right begin the case
In criminal cases, it is always the prosecution which start (open) the case. This is be
cause it is easy to prove the affirmative than the negative and also it is based on the
presumption of innocence, i.e. the accused is presumed innocent until the contrary is
proved.
In civil cases, the plaintiff always begin the case because he is the one who asserts certain
facts, except where there are certain facts of the accused raise in written statement of
defence (counter claim)
7.4 On whom the Burden of Proof lies
According to section 111, the burden of proof lies on person who if on evidence were
given at all on either side in a suit he would fail e.g.
(a) A sues B for land of which B is in possession, and which as A asserts, was left to
A by the will of C, B’s father.
(b) A sues B for money due on a bond, the execution of the bond is admitted, but B
says that it was obtained if no evidence were given on either side, A would
succeed, as the bond is not disputed and fraud is not proved. Therefore the Bop is
in B.
7.5 Burden of Proof as to particular facts
According to s. 112, a person who wants the court to believe on the existence of a
particular fact, the bop is on that person unless the law provides that the proof of that fact
lies on any other person. e.g.
(a) A prosecutes B for theft, a wishes the court to believe that B admitted theft to C.
A must prove the admission.
(b) B wishes the court to believe that, at the time in question, he was elsewhere. He
must prove it.
7.6. Burden of Proving Facts to be Proved to Make Evidence Admissible
According to section 113, if there is any fact necessary to be proved in order to enable
any person to give evidence in any other fact, the burden of proving such fact is on the
person who wishes to give such evidence e.g.
a) A wishes to prove a dying declaration by B,A must prove B’s death.
b) A wishes to prove by secondary evidence, the contents of a lost document. A
must prove that the document has been lost.

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7.7. Burden of Proof in Criminal Cases

The Cardinal Principle of our justice system is that the accused is not required to prove
his innocence. This principle is enshrined in the Constitution.18 Viscount Stankey Justice
once said that;
“Throughout the web of the English Criminal Law, one golden thread is always
to be seen that it is the duty of the prosecution to prove the prisoner’s quilt
subject to the exception of the defence of insanity and subject also to the statutory
exceptions”19
The prosecution has to satisfy the court beyond reasonable doubt that the accused
committed the offence for which he is charged s.3 (2) (a). When after all evidence by the
prosecution has been adduced and there is any doubt which exist, the accused is entitled
to the benefit of that doubt. It is not correct to say that when the prosecution has adduced
such evidence as the circumstances and nature of the case require, it is for the accused to
establish his innocence for the reason that there is no burden laid on the accused to prove
his innocence and it is sufficient if he succeeds in raising doubt as his guilt. In Longinus
Komba v. R (1973) L.R.T n. 39, the court said that;
In criminal cases, the burden of Proof is on the prosecution to establish their case
beyond all reasonable doubt. An accused person ought to be convicted on the
strength of the prosecution and not on the weakness of the defence. When an
accused makes and assertion, it is the duty of the prosecution to disprove it and
establish the guilt of the accused and not for the accused to establish his
innocence by calling witnesses.
In the case of Omari s\o Hassan v. R (1956) 23 EACA 580, it was held the refusal of the
accused to give evidence, whilst, it can be taken into account by the court, does not in
any way relieve the prosecution of their responsibility for proving their case beyond
reasonable doubt.
In deciding the case the court should take the evidence as a whole i.e. should not look
separately at the case for prosecutions and the case for the defence. In Ndege Maragwa
v. R (1956) East African Court of Appeal Crim. Appeal No. 156 of 1964 (unreported).
“It is the duty of the trial judge, both when he sums up and when he gives
judgment, to look at the evidence as a whole. We think it is fundamentally wrong
to evaluate the case for the prosecution in isolation and then to consider whether
or not the case for the defence rebuts or cast doubt on it.”
7.8 Burden of Proof in civil cases
In civil cases burden of proof usually but not invariably lies on the plaintiff. The burden
of proof in civil cases unlike that in criminal cases is more lighter, thus if the onus lies on
the plaintiff, he does not have to prove the truth of what he asserts beyond reasonable
doubt in order to win the case. It is enough if he establishes his case on a balance of
probabilities. However, it is to be noted that the standard of proof required is not the
same in all civil cases. The proof varies according to the gravity of the matters to be
proved. For example where something akin to a crime is alleged, like fraud of forcible
18
Article 13 (6)(b) Constitution of the United Republic of Tanzania, 1977
19
Woolmington v. Director of Public Prosecution [1935] A.C. 462.

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taking of property something more than the more balance of probabilities will be
required.
In civil cases according to s.3 (2) (b) a fact is proved in civil cases as well as in
Matrimonial cases and matters, if its existence is established by a prepondence of
probabilities.
7.9 Extent of Burden of Proof on accused
According to s.114 (1), there are circumstances where the court will place the burden of
proof on the accused person. This section however was drafted pursuant to the decision
in the case of Woolmington v. Director of Public Prosecutions (1935) Ac 462. In the
case of Kongoro Alias Athuman s\o Mrisho v. R (1956)23 EACA 532, the court said
that:
“There is no presumption that every homicide is prima facie murder…Since
Woolmington’s case, it is well settled law that the presumption of sanity is the
only common law presumption which shifts the burden of proof to the accused in
a criminal case. In Tanganyika that presumption is embodied in section 12 of the
penal Code. The presumption that every man must be taken to intend the natural
and probable consequences of his acts is merely an evidentiary presumption
which may, not must, be drawn and it does not shift the onus of proof from the
prosecution to the accused.”
If the accused person wants to prove the existence of circumstances bringing the case
within any exception or exemption, or qualification, such evidence need not be strictly
proved, it is necessary that evidence to raise reasonable doubt.
In the case of Omparkash Gandhi v. R (1961) EA 643, Sindar, C. J. said:
“There are certain types of cases in which it is sometimes said that there is onus
upon the accused person to give a reasonable explanation in respect of
circumstances which have been established by the prosecution. In these cases the
explanation need not be established as more than a reasonable possibility in the
circumstances…… [An example of this type of case] occurs in homicide cases
where the Crown (Republic) has proved facts which appear to amount to murder
without any suggestion of possibility of a defence, such as self-defence or
accident, or qualified defence such as provocation. If in such cases the accused
wishes to raise such defence he may be expected to give some explanation
suggesting the particular defence to be raised and if he fails to give any
explanation he may be convicted of murder. In all these cases the defence is
never require to do more than show an explanation which is reasonably possible
in the circumstances; such cases are not really cases of an onus or proof upon
the defense in a persuasive sense for in truth in such cases the onus is upon the
prosecution throughout to prove every essential of the offence beyond reasonable
doubt and it never shifts to the defence, but the prosecution may be established if
the facts proved call for some explanation and no reasonable explanation is
forthcoming. In all such cases if an explanation is given if must be completely
rejected as a reasonable possibility or else the prosecution will fact.”
In the case of Samwel Silang v. R (1993) TLR 149, the appellant was convicted of
murder and sentenced to suffer death. He appealed against both conviction and sentence.
One ground of his appeal was that the burden of proof was improperly shifted to the

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defense when, being found to have his right palm stained with blood, he was asked how
he got it and he kept quiet. The Trial court inferred quilt because the appellant kept quiet
on how he got blood on his right palm. On appeal:
Once it was shown that the appellant’s palm was stained with blood at a tine
when murder involving stab wounds had just been committed in the
neighbourhood, and no doubt suspicion was mounting high all over the place, one
wound expect the appellant to explain how he got his palm stained with blood,
certainly it was in his best interest to do so.
There are cases which fall under s.114 which involve facts especially within the
knowledge of the accused person, under this situation the burden is upon him. In cases
involving receiving property suspected to have been stolen or unlawfully obtained, or in
cases involving licences, the burden of proving such circumstances and facts that he had
a license is on the accused person. In the case of Osman v. R. (1970) HCD No. 297, the
appellant was found in possession of drums or paraffin. The trial magistrate convicted the
appellant on the ground that he had failed to give satisfactory explanation on how he
came along those drums. This was due to the fact that the appellant made various
conflicting statements to the police and in the count. On appeal the learned judge held
that the learned magistrate misdirected himself on account the he was looking for an
account which could he true, while the appellant’s duty was to five an account which
might be reasonably true and which is consistent with innocence possession the learned
judge went on to say:
“ I may state that the burden of proof is on an accused to give a reasonable
explanation as to how he came by the property suspected to have been stolen or
unlawfully obtained and that this burden is not heavy one and that the statement
to be considered by the trial count is that which he makes in count…..and not any
statement which might have made to any one else (including the police officer) as
the duty to give an explanations does not arise until the accused is before the
count.”
In another case of Gulamali Bhaloo v. R (1970) HCD No. 172, the appellant was
charged and convicted with respect to breaches he made on the provisions of the National
agricultural products Board Act, which prohibited dealing in barter, offer for sale, sale
purchase or hire of any of the agricultural products specified in the Act without the
license issued by the Board. In deciding on whom the burden of proof lays in such case,
George, C.J as he then was said that “the burden is also placed on the accused person of
proving of facts especially within his knowledge.” After quoting authority from England,
the learned judge held that “onus there was proof of dealing in vice in wholesale
quantities it was up to the appellant to prove that he was an agent or license of the board;
and the court found that the appellant had failed to do so.
There are still further types of cases in which the accused person will be needed to give
reasonable explanation in respect of circumstances which have been established by the
prosecution. On example is to be found in cases involving defence of intoxication. If the
accused person wishes to raise the defence of intoxication, he is expected to give some
reasonable explanation and if he fails to give such explanation he may be convicted of
the offence charged. Under section 14 (2) of the Penal Code, intoxication shall be a
defense provided that at the time of the commission or omission he did not know what he
was doing and that due to intoxication he was Temporary insane at the time of such act or

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omission. And s.14 (4) provides that intoxication is to be taken into account to determine
whether the person charged had formed any intention or not. The absence of intention
will entitle him to acquittal. In the case of Kongoro Alias Athumani s\o Mrisho v. R
(1956)23 EACA 532 the court held that the provision in section 105 of the India
Evidence Act I.E.A. (s.114 TEA) stating that the burden of proof on the accused in
respect of the defense of intoxication remain un affected by the rest of the section applied
only to the first part of s.14 of the Penal Code dealing with intoxication, that is to say
provision regarding involuntary intoxication and intoxication amounting to insanity
s.14(2) and not to the part which states that intoxication is to be taken into account to
determine whether an intention has been formed s.14(4). Thus the burden of proving
intention remains on the prosecution. In the case of R. v Magoma (1971) HCD No.44, it
was insisted that even though the burden of proving insanity as a result of intoxication is
on the accused, the prosecution had the burden of proving that at the time of doing such
act or omission he was not so much drunk as to be incapable of forming intention. In this
case the accused was charged of murder. It was the prosecution case that the accused
struck the deceased on the head using a hoe causing wound which caused the death of the
deceased. The incidence took place while they were drinking “MOSHI.” The court found
that the prosecution has failed to discharge the onus this of proving that the accused
formed malice aforethought for murder, and this burden is always on the prosecution.
Where an accused in a murder charge sets intoxication as a defense, the burden of
proving that the accused was capable of forming the intent necessary to constitute the
offence of murder always remain on the prosecution 20. The court went on to say if the
probability emerges from the evidence that the accused was incapable of forming that
intent the prosecution has not discharged such burden. It must always be kept in mind
that the burden of proving intention does not shift; it is always on the prosecution side.
In defense of insanity, there is a presumption that “Every person is presumed to be of
sound mind and to have been of sound mind at any time which comes in question until
the contrary is proved.”21 When an accused person raises the defense of insanity the
burden of proof is placed on him. The defense of insanity is a matter of defense on a
balance of probabilities; the standard is just the same of that in civil cases. This is due to
the fact that the defense of insanity is a rebuttable presumption in law. In the case of R. v
Agnes Doris Liundi (1980) T.L.R.38, the accused killed her three children and one plus
herself were saved by a doctor. During the trial a defense of insanity was raised by her
counsel. It was contended that she was so mentally distressed that though she knew what
she was doing, she did not knew or was incapable of knowing what she was doing was
wrong. The prosecution relied on the letter she wrote contended that she knew what she
was doing was wrong. The court found for the prosecution. In the High Court, the
accused was found sane and the court held that “Where an accused person raised the
defense of insanity it must be shown that on all the evidence, that insanity is more likely
than sanity….The burden of proving insanity is on the accused on a balance of
probability” This however, does not relieve the prosecution the burden of proving its
case beyond reasonable doubt, while the defense is required to show that at the time of
the act or omission the accused person was incapable of knowing what he was doing and
that what he was doing was wrong, the prosecution has to prove the contrary.
20
Kahekeya Buzoya v. R(1976)LPJ n.16
21
Section 12 of the Penal Code.

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In Francis Massau .V. R (1975) TLR n.69, the appellant was charged and convicted of
unlawful possession of government trophy c/s 49 (1) and 53(1) of the Fauna
Conservation Ordinance, cap.302. On appeal the count held that the onus is on the
prosecution to prove unlawful possession by the accused, then the burden of proving
lawful possession will be upon the accused person, and have the standard of proof is on
the balance of probabilities.
In cases of the prevention of corruption Act under s.9 when a person is found in being in
possession of property corruptly required, the burden is put on him to satisfy the count
that he did not acquired that property corruptly however s.9 requires that.
• There must be reasonable suspicion that the accused corruptly acquired or
received the property found in his possession.
• The prosecution must lead evidence to show that the accused is possession of the
property did not commensurate which his service and ask the count to draw
reference that it came into his possession illegally.
• The prosecution must adduce evidence that the property was acquired on
circumstances that raises suspicion of corruption.
One the above requirements are met, the burden of proof is pt on the accused to satisfy
the count that he did not acquire that property corruptly. The accused is required to prove
on a balance of probabilities that he did not accept the advantage corruptly as an
inducement or reward.
According to s.114(1) the second proviso, it is clear that the prosecution has the legal
burdern of proving the case beyond reasonable doubt, what the accused person is
required to do is to raise reasonable doubt to which he is entitled the benefit if the
prosecution fails to discharge its burdern.
In civil cases, when any fact is especially which in the knowledge of any person, then
according to s.115 the burdern of proving that fact is upon him.
7.10. Presumptions
Presumptions are devices utilised by the courts to pronounce an issue regardless whether
there is evidence or is insufficient. The effect of presumption is to allocate the burden of
proof in relation to the issue to one party or the other irrespective of which of them bears
the general burden of proof. Under the doctrine of presumption, the courts are entitle to
draw inferences either of certain facts or of law i.e. in this respect, the courts take for
granted by presuming the existence of facts in such cases.
The term presumption in its largest and most comprehensive sense may be defined to be
an inference, affirmative or dissaffirmative of the truth or falsehood of a doubtful fact or
preposition, drawn by a process of probable reasoning from something proved or taken
for granted.22
Types of presumptions;
(a) Presumptions of facts: the courts draw an inference of existence of facts either in
affirmative or dissaffirmative of the truth or falsity of the preposition of facts.
This process involves probable reasoning because is dealing with uncertainty of
22
BEST, 12th Edn., section 299, p. 267

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the existence of facts. The process is continued until the certainty of facts is
reached. The court is given discretion to draw inference and this depends on the
circumstances of each case and they use common human experience.
Presumptions of fact are those where the court may presume a fact. These are also
sometimes called material presumptions of law. E.g. sections 95—97, 99 and 122
TEA.
(b) Presumptions of law: these are irrebutable presumptions since they belong to the part
of the substantive law. E.g. sections 15 and 8 of the Penal Code. The court is
entitled to draw an inference from a particular fact or evidence until such
inference is proved. This inference is drawn when facts are the basis of
inferences. The inferences can be made as they develop from the pleading, they
are fixed rules and form part of the major legal system. Presumptions law can
further be subdivided into rebuttable presumptions of law and irrebutable
presumptions of law. In the first category the court shall presume a fact e.g.
section 84—94, 97 and 121 TEA.
Instances of irrebutable presumptions of law can be found under section 43 TEA,
8 and 15 Penal Code.
Instance of rebuttable presumptions of law, sections 160 Law of Marriage Act,
section 117 TEA, section 12 Penal Code, Article 13 (6)(b) Constitution of the
United Republic of Tanzania.
(c) Differences between presumptions of law and presumptions of fact
• Presumptions of law derive their force from the law, while, presumptions of facts
derive their force from common sense and logic.
• Presumptions of law apply to a class of conditions which are fixed and uniform,
while, presumption of facts apply to individual cases the conditions of which are
inconsistent and fluctuating.
• Presumption of law are drawn by the court and in the absence of opposing
evidence and are conclusive on the party in which they operate, while
presumptions of facts are drawn by the judges of facts.

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8. ESTOPPEL
8.1 Definition
Estoppel is primarily a rule of evidence whereby a party to litigation is, in certain
circumstances prevented from denying something which he had previously asserted to be
true.23
Estoppel is based on the principle that it would be most inequitable and unjust that if one
person by a representation made, or by conduct amounting to a representation had
induced another to act as he would not otherwise have done the person who made the
representation should not be allowed to deny or repudiate the effect of his former
statement to the loss and injury of the person who acted on it.
According to section 123, when a person has by his declaration, act, omission
intentionally caused or permitted a person:
(i) to believe to be true, and
(ii) to act upon such belief,
then neither he or his representative shall be allowed to deny the truth of that thing in any
suit or proceeding between himself and such person or his representative.
For the doctrine of estoppel to apply three conditions must be fulfilled:
(a) there must be a representation by a person to another,
(b) the other person shall have acted upon the said representation,
(c) such action shall have been detrimental to the interests of the person to whom the
representation has been made.
Section 123 is based on equity and good conscience the object being to prevent fraud and
secure justice between the parties by promoting honest and good faith. This section is
based on the decision in the case of Pickard v. Sears (1832) Ad & EL 469 where it was
stated:
“Where a person by his words or conduct willfully causes another to believe in
the existence of a certain state of things and induce him to act on that behalf so
as to alter his own previous position, the former is precluded from averring
against the later a different state of things as existing at the same time.”
The only difference in this decision is the use of the word “willfully” whereas in section
123 the word used is “intentionally”.
Halsbury24 define estoppel “Estoppel may be defined as a disability whereby a party is
precluded from alleging or proving in legal proceedings, that a fact is otherwise than it
has been made appear by the matter giving rise to that disability.”
The doctrine of estoppel deals with question of facts and not on law. Estoppel cannot lay
against the performance of statutory duty.
8.2. Elements/ingredients of Estoppel
According to section 123:
23
Nurdin Bandali v. Lombank Tanganyika Ltd. [1963] E.A. 304.
24
4th Edn., Vol. 16, para 1501, page 1008.

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• There must be a representation by a person or his authorised agent to another in any

form, a declaration, act or omission.
• The representation must have been of the existence of a fact and not of promise de
futuro or intention which might or might not be enforceable in contract.
• The representation must have been meant to be relied upon.
• There must have been belief on the party of the other party in its truth.
• There must have been action on the faith of that declaration, act or omission; that is to
say, the declaration, act or omission must have actually caused another to act on the
faith of it, and to alter his former position to his prejudice or detriment.
• The misrepresentation or conduct or omission must have been the proximate cause
leading the other party to act to his prejudice.
• The person claiming the benefit of an estoppel must show that he was not aware of
the true state of things. If he was aware of the real state of affairs or had means of
knowledge there can be no estoppel.
• Only the person on whom representation was made or for whom it was designed can
avail himself of it.
8.3 Estoppel by Conduct
Estoppel by conduct is provided under section 123. under this section, to raise an
estoppel by conduct, a person must by words or conduct induce another to believe that a
certain state of things exists and to cause that other to act on that belief in a way he would
not have done had he known the facts so that if in an action between them the person
making representation were allowed to prove true facts—to tell the truth—the other
person would have been prejudiced.
For this estoppel to operate it is therefore necessary that the conduct should have been
such as to cause or permit another person to believe something to be true: the second
person must in fact, have entertained this belief and have acted in some way upon it
doing or forbearing to do something, thus altering his position to his detriment with the
result that to deny the representation would be to prejudice him. This estoppel may arise
out of an agreement or as the result of a misrepresentation or of negligence.
8.3.1. Prepositions of an Estoppel by Conduct
According to Brett, j.,25 there are four prepositions of estoppel by conduct:
(a) If a man by his words or conduct willfully endeavours to cause another to believe
in a certain state of things exists, which the first knows to be false, and if the
second believe in such state of things, and acts upon his belief, he who knowing
made the false statement is estopped from averring afterwards that such a state of
things did not, in fact exist.
(b) If a man, either in express terms or by conduct makes a representation to another
of the existence of a certain state of things which he intended to be acted upon in
a certain way, and it be acted upon in that way, in the belief of existence of such
25
Carr v. London and North Western Railway Co. (1897) LR 10 CP 307, 316, 317, 318.

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state of facts, to the damage of him who so believes and acts, the first is estopped
from denying the existence of such state of facts.
(c) If a man, whatever his real meaning may be, so conduct himself that a reasonable
man would take his conduct to mean a certain representation of facts, and that it
was a true representation, and that the latter was intended to act upon it in a
particular way, and he, with such belief does act in that way to his damage the
first is estopped from denying that the facts were as represented.
(d) If in the transaction itself which is in dispute one has led another into the belief of
a certain state of facts by conduct culpable negligence calculated to have that
result and such culpable negligence has been the proximate cause of leading and
has led the other to act by mistake upon such belief, to his prejudice the second
cannot be heard afterwards as against the first to show that the state of facts
referred to did not exist.
8.3.2 Estoppel by Misrepresentation
The case of Addi Nuri V.B.E.E. Corporation and Rukiya (1901) 3 E.A.P.L.R. 19 is a
good example of estoppel arising out of misrepresentation. In this case, Rukiya had sold
a plot and the purchaser had re-sold to the corporation. Later the plaintiff Iddi brought an
action to recover the land, claiming that Rukiya had only possessed by inheritance one
third of the plot, the remaining two thirds having belonged to Abubakar bin Abdi Nur,
whose representative (Wasi) the plaintiff was. It was established that this was in fact so
but that Abubakar had before the sale in question negotiated a sale to one Jaffer Devji
when however, the latter had tried to enforce the agreement, Abubakar had been party to
a fraud by which with the aid of an alteration in the title deed, Rukiya was held out to be
the sole owner. Devji as a result dropped the action and Rukiya from then on dealt with
the property as though it were her own and the defendant company had regarded
Rukiya’s title as above suspicion. The court held that “The plaintiff as representing
Abubakar is estopped by law “equity” and the Sheria from succeeding in his claim.”
8.3.3 Implied representation
Implied representation was held to exist in the case of Clifton v. Howley [1966] E.A. 44.
In this case the plaintiff had submitted to arrest on the strength of the presentation to him
of a warrant on which the first Christian name had been wrongly inserted as Edward
instead of Edger. It was until he appeared for trial that the error was noticed and as a
result was discharged. He then took an action for damage for false imprisonment. It was
however, held that by accepting the position without demur after the presentation of the
warrant, the plaintiff had given the defendant an unmistakable indication that in the
plaintiff’s view the defendant was acting correctly in effecting his arrest and that the
plaintiff would place no obstacle in his way: the action accordingly could not succeed.
8.3.4 Mere silence not a Representation
Mere silence cannot constitute a representation giving rise to estoppel unless there is a
duty to speak. In Vallabhadas Hirji Kapadia v. Thakersey Laximidas [1964] E.A.
378, the appellant instructed one J.V to ship certain goods to Mombasa. V.J with the
appellant’s knowledge invoiced the goods to his agent, the respondent for sale. These
invoices implicitly warranted to authority of J.V to sell the goods and the respondent who
was unaware that J.V. was not the owner sold them. Later as the result of confusion
deliberately created by J.V. with intent to defraud, the respondent met two bills of sale

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drawn by J.V. in the belief that he was paying for these goods. When he was later
presented with a further two bills, this time infact for the goods in question he refused to
accept them. The appellant then sued the respondent for conversion. It was held that the
appellant had armed J.V or had knowingly permitted him to arm himself with indicial of
title to the goods and not merely delivery orders thus allowing him to deal with the goods
as though they were his. As the appellant knew that the goods were being sent to the
respondent he was under a duty to inform him or to insure that he was informed of his
(appellant’s) interest in the goods. As he did not and the respondent unaware of this dealt
with goods in a way inconsistent with the appellant’s rights, the appellant was precluded
form denying the authority of J.V. to deal with the goods as he did and from asserting
that the respondent wrongly dealt with the goods or was liable to him in conversion.
8.3.5 Estoppel to be one of fact and not of law
For a representation to operate as an estoppel it must be clearly one of fact and not of
law. However, sometimes it is difficult to distinguish between statements as to fact and
as to law for a representation may involve both. In the case of Alger v. Middlesex
County Council [1945] 2 All E.R. 247, the appellant had accepted a post as interim
registrar under the Council on the strength of a representation that his superannuation
rights would be protected; in fact under the Local Government Act, 1937, he was not as
interim registrar superannuable. In the judgment, Humphreys, J. said:
“One realises of course, that in dealing with the doctrine of estoppel one must
always be careful to see that the court is not saying that a man is estopped from
stating what is the law. No man can ever be estopped from that if all that
happened was that certain view of the law was taken by the Middlesex County
Council and they made a mistake in what after all on the part of anybody, even
what is the law—if all that happened was that somebody said ‘well in my view of
the law this, that and the other result follows’ no law of estoppel can prevent him
from asserting that this is the law.”
8.3.6. Estoppel by conduct and waiver
There may be a close resemblance arising out of a conduct in relation to an agreement
and waiver whereby one party to an agreement entitles him. This distinction was
discussed in the case of Nurdin Bandali v. Lombank Tanganyika Ltd [1963] E.A. 304.
In this case the appellant had entered into a hire purchase agreement with the respondent,
the respondent was entitle should the appellant default in the punctual payment of the
monthly here rental to resume possession of the vehicle. Furthermore, forbearance on the
part of the appellant was not to prejudice his rights under the agreement or to operate as a
waiver. When however, the last two payments, the seventeenth and eighteenth had fallen
into arrears, the respondent took possession of and sold the vehicle. It was submitted on
behalf of the appellant that the respondent had not been entitled to re-posses on three
grounds, the second and third being that this rights had been waived by the respondent as
by the course of its conduct it had made time no longer the essence of the contract and
that the respondent had by its conduct estopped itself from asserted its right to re-possess.
It was held by Newbold, J. that:
“The second submission was based on waiver and the third on estoppel. Before
considering either of these submissions, the distinction between waiver and estoppel
should be clearly appreciated. Waiver is based on a contract, express of implied between

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the parties. This it arises from a term, express or implied of a contract, and before any
such term can exist a valid contract must be established. If it is found that a contract is
established and it contains such a term, that term like any other term is a contract, may
found a cause of action. Estoppel, on the other hand is primarily a rule of evidence
whereby a party to a litigation is in certain circumstances, prevented from denying
something which he had previously asserted to be true. Estoppel, whether at Common
Law or in Equity, can never found a cause of action, though it may enable a cause of
action, which would otherwise fail to succeed.
…As regards the submissions relating to estoppel, the facts upon which the appellant
relies to found an estoppel are precisely the same as those he submitted founded a
waiver…I have already come to the conclusion that the facts do not result in a waiver of
the respondent’s rights under the agreement, but it by no means follows that the facts
would not result in the respondent being estopped from asserting a right under the
agreement. The essence of the agreement is that in the case of waiver a contract, express
or implied must exist whereby the respondent agreed to give up to postpone its rights;
whereas in the case of estoppel if the representation by words or conduct of the
respondent where such as to induce the appellant to alter his possession in the belief that
the respondent’s rights would not be asserted, then the respondent may be estopped from
asserting those rights even though it never intended to give them up.”
8.4 Estoppel by Record/Judgment
Estoppel by record result from the judgment of a competent court. The law allows a party
ample opportunity by way of appeal and otherwise of upsetting a wrong decision. It is a
matter of public policy that the judgment of court acting within the scope of its lawful
jurisdiction should be final and conclusive as between the parties concerned. This is
provided under section 9 of the Civil Procedure Code which states:
“No court shall try any suit or issue in which the matter directly and substantially
in issue in a former suit between the same parties, or between parties under
whom they or any of them claim, litigating under the same title in a court
competent to try such subsequently raised, and has been heard and finally
decided by such court.”
In Halsbury26 it is observed estoppel of record arises:
• Where an issue of fact has been judicially determined in a final manner between
the parties by a tribunal having jurisdiction concurrent or exclusive, in the matter
and the same issue comes directly in question in subsequent proceedings between
the same parties (this is sometimes known as cause of action estoppel);
• Where the first determination was by a court having exclusive jurisdiction and the
same issue comes incidentally in question in subsequent proceedings between the
same parties (this is sometimes known as issue estoppel);
• In some cases where an issue of fact affecting the status of a person or thing has
been necessarily determined in a final manner as a substantive part of a judgment
in rem of a tribunal having jurisdiction to determine that status and the same issue
comes directly in question in subsequent civil or criminal proceedings between
any parties whatever.
26
4th Edn., Vol. 16, Para 1503, p. 1009.

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The force and effect of a judgment depend on the nature of the proceedings in which it
was rendered i.e. upon the question whether it was an action in rem or in personam. The
effect of such judgments i.e. in rem or in personam is covered under section 43 and 44.
According to Lewis, J.,
“A judgment in rem I conceive to be an adjudication pronounced (as in deed the
view denotes) upon the status of some particular subject matter by a tribunal
having competent authority for that purpose.”27
The principle of re judicata prohibits a litigant from re-opening a suit which has already
been decided by a competent court. This principle also prevents or estops a litigant from
asserting or denying a particular fact upon which a decision was reached by a competent
court in an earlier case, even though the latter case is founded upon a different cause of
action from the earlier one. The matter in question in the subsequent action must be
directly and substantially in issue in the former suit.
The issue now is whether or not estoppel by judgment can operate in cases where the
judgment in the original case was given in default of appearance. In a situation like this
the case has not been strictly speaking directly and substantially in issue. Although such
judgment may operate as an estoppel, its effect in this respect is limited. This was stated
in the case of New Brunswick Railway Co. v. British and French Trust Corporation
[1939] A.C 1 at p. 21. In this case, Lord Maugham, L.C. stated:
“In my opinion we are at least justified in holding that an estoppel based on a
default judgment must be very carefully limited. The true principle in such a case
would seem to be that the defendant is estopped from setting up in a subsequent
action a defence which was necessarily and with complete precision, decided by
the previous judgment.”
In the case of Re Allan (1930) 12 K.L.R. 90, the application was made that a certain
advocate should be struck off the roll of advocates, since, because he had been a
defendant in a case in which an allegation of breach of trust had been made in the
pleading and having failed to enter appearance, judgment had been given against him, he
had thereby admitted the truth of the allegation. Stephens, J., held that:
“It seems to me beyond all doubt that the respondent Allan by allowing judgment
to go by default cannot be estopped from denying the allegation of breach of trust
in the point. He can only be held to admit that the amount sued for was due from
him to the plaintiff.”
In Musa bin Khamis bin Juma el Nafli v. Kaporo bin Kasibu Mnyamwezi [1957]
E.A. 189, Wyndham, C. J., said that an earlier judgment did not constitute res judicata
where this judgment was by default and not on its merits, since a judgment dismissing a
plaintiff’s suit in default could not be said to have heard and finally determined the
matter in dispute for the purpose of constituting res judicata under the section (section 9
of the Criminal Procedure Code).
8.5 Estoppel by Deed
According to Dalton v. Fitzerald (1897) 2 Ch. 86 would apply when a person sought to
be estopped or his predecessor in interest has obtained possession of property or some
advantage under the deed. However, if a document is fictitious it is of no legal
27
Abdulali Jiwani v. J. V. Pandya [1958] E.A. 521.

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consequence and the parties to such a document are not bound by the contents thereof. In
the case of Bowman v. Taylor (1834) 2 A & E 278 it was held that when a person has
entered into a solemn engagement by deed under seal with another party he or the
persons claiming through or under him shall not be allowed to set up the contrary of his
assertion in the deed. Estoppel by deed is not provided for under the Evidence Act, but it
has been recognised by courts as was in the case of Jenabai Sachoo and Anor. V.
Shamsa binti Shemis and Anor. [1957] E.A., where Law, J. said:
“Velji’s defence that he did not request the loan to be made cannot avail him. The
deed which he signed after it had been read over to him recites inter alia
‘And whereas the mortgagee has at the request of the mortgagor and the
surety [Velji] agreed to lend to her, the mortgagor the sum of sh. 16,000/=’
To quote Halsbury, vol. 15 p. 215, ‘ a person is bound by the recitals in a deed to
which he is a party. Whenever they refer to specific facts and are certain, precise
and unambiguous’. F. K. Velji set his hand and seal to this deed and he is not
permitted to deny any matter which he has specifically asserted therein: he is
estopped from so doing.”
8.6 Estoppel by Tenant etc
Section 124 deals with estoppel of a tenant and a licensee of the person in possession. It
postulates that there is a tenancy still continuing and that it had its blessing at a given
date from a given landlord and provides that neither a tenant nor any one claiming
through a tenant shall be heard to deny that the particular landlord had at the date a title
to the property.
In Halsbury28 stated
“The lessor is estopped from repudiating a lease under which possession has been given
or a tenancy which he acknowledges and the assignee of the lessor’s interest is estopped
from denying anything which the lessor is estopped from denying.”
8.7. Estoppel of Acceptor of bill of exchange
Under section 125, an acceptor of a bill of exchange cannot deny that the drawer had
authority to draw such bill or to endorse it. However, under the proviso to this section, he
may deny that the bill was really drawn by the person whom it purports to have been
drawn.
8.8. Estoppel of a bailee or licensee
Under section 126, a bailee or licensee cannot that his bailor or lisensor had, at the
commencement of the bailment or license authority to make the bailment or grant the
license. However, under the proviso, a bailee if he delivers the goods bailed to a third
person may prove that such person had a right to them as against the bailor.
28
Halsbury’s Laws of England 4th Edn., Vol. 16 para 1625 p. 1095.

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9. WITNESSES
9.1 Competency, Compellability and Privilege of Witnesses
9.1.1 Who may testify
According to section 127 all persons are competent to testify unless they are in the
opinion of the court:
• Unable to understand the questions put to them,
• To give rational answers to those questions owing to;
o Tender years
o Extreme old age
o Disease of mind or body
o Any other such cause.
Competency of a witness to give evidence is different from compellability to give
evidence. A person may be admitted to give evidence, though in certain cases he will not
be competent and compellable. A person however, though competent and compellable as
a witness may not be competent or may not be compellable to give evidence as to
particular matter.
A person is competent to testify if he/she may lawfully be called to give evidence and a
witness is compellable if he can be lawful be obliged to testify. All competent witnesses
are compellable except for the following:
o Children of tender years
o Person of defective intellect
o Spouses
o Accomplices
o Person with statutory immunity.
9.2 Number of Witnesses
Section 143 generally provides that there is no particular number of witnesses required to
prove a case, this of course is subject to provisions of other written laws. In the case of
Masudi Amlima v. R. [1989] TLR 25 the appellant was convicted for house breaking
and stealing. On appeal among other issues, the appellant argued that the magistrate erred
in convicting him on the testimony of a single witness. The High Court said that there is
no law requiring that more than one person should be required to prove the fact.
However, there are some instances where the law will require that the evidence of more
than one witness be given in testimony. Example of these instances include;
o There are certain offences in respect of which a conviction requires either the
evidence of at least two witnesses or the corroboration of a single witness’s
testimony. E.g. Penal Code section 44 (treasons), section 105 (perjury), The
Affiliation Act Cap. 278 section 5.

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o The unsworn or unaffirmed evidence of a child of tender years requires corroboration

section 127(3) Evidence Act.
o Evidence of accomplices or complaints in cases involving sexual offences need
corroboration.
o In cases involving identification of the accused.
9.1.3 Persons of Tender Years
In Tanzania any person who is of or below the age of fourteen years is a child of tender
years—section 127(5).
There is no precise or fixed rule in which children are excluded from giving evidence on
the presumption that they have no sufficient understanding. Neither can any precise rule
be laid down respecting the degree of intelligence and knowledge which will render a
child a competent witness. But admissibility of evidence of a child of tender years
depend upon the sense and reason entertained by virtue of the possibility of falsifying
evidence i.e. the possibility of not being able to tell between truth and untruth, right and
wrong. Usually according to section 127(2) it is for the court to decide whether a child of
tender years is able to testify or not. When a child of tender years appear as a witness
before the court it is the duty of the court to discover whether the child understand the
nature of oath, if he does, then he can be sworn or affirmed. If on the other hand it si
found out that the child does not understand the nature of an oath, the court must satisfy
itself that the child is of sufficient intelligence to justify the receiving of his evidence and
that he understands the duty of speaking the truth. It must be recorded by the court that
this has been done. Normally, the court will conduct voire dire—questions put by the
court to the child in order to determine whether he understand the nature of an oath or his
intellect.
The investigation into whether the meaning of an oath is understood was discussed in the
case of Kibangeny Arap Kolil v. R [1959] E.A. 92 where it was held that the
investigation “need not be a length one, but it must be made and when made the trial
judge must record it…the investigation should precede the swearing and the evidence
and should be directed to the particular question whether the child understands the nature
of an oath rather than to the question of his general intelligence”.
In the case of Joseph v. R. (1971) H.C.D n. 58, the evidence of a child between 9—
10years was unsworn or unaffirmed, the magistrate recorded that he did not understand
the meaning of an oath. Accused was convicted and sentenced to 1 year imprisonment.
On appeal the court held that:
It is a condition of reception of that evidence that the trial magistrate must not
only be satisfied that the child understands the duty of speaking the truth but that
he must manifestly appear to be so satisfied. Section 127(2) require him to record
such fact in the proceedings, this he did.
In the case of Shozi Andrew v. R.[1987] T.L.R. 68, the appellant was convicted of
wounding. The conviction was based primarily on the evidence of a child of 13 years. On
appeal:
In terms of section 127(2) of the Evidence Act, sworn testimony of a child of
tender years does not need corroboration. It can be treated as any other sworn
testimony, and it could form the basis of conviction.

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In the case of Elias Joakim v. R. [1992] T.L.R. 222, the appellant was convicted of
house breaking and stealing, basically on the evidence tendered by children of tender
years. On appeal the court said:
• Competency of giving evidence in so far as the child of tender years is concerned
is not a matter of age but of understanding.
• Where a child of tender years gives evidence sworn after a successful voire dire
test, and that he understands the nature of an oath, his evidence so given is as
good as that of an adult and it is treated that way, and such evidence ma only
require corroboration, if it is accomplice evidence or is such evidence which as a
matter of practice or requirement of law, corroboration is necessary.
According to section 127(3), the evidence of a child of tender years has to be
corroborated by other material evidence. This rule is not hard and fast and the court of
law may after warning itself of the danger of conviction on uncorroborated testimony
proceed to convict the accused if it believe that the child is telling nothing but the truth.
This requirement is not of law but of practice.
According to section 127(4), the evidence of a child of tender years may also be used by
the court as material evidence to corroborate the evidence of another child of tender years
or may also be used to corroborate the evidence of an adult. However, it si to be noted
that the unsworn or unaffirmed evidence of a child of tender years need to be
corroborate, thus if not corroborated, cannot be used to corroborate other evidence.
A person of unsound mind according to section 127(6) can give evidence if the court is
satisfied that he is capable of understanding the nature of proceedings, and also is capable
of understanding the questions put to him and giving rational answers to those questions.
Where in sexual offences the only independent evidence is that of a child of tender years
according to section 127(7) the court shall receive such evidence. The court after
assessing the credibility of such evidence, and even though uncorroborated may proceed
to convict the accused after satisfying itself that the child is telling nothing but the truth.
This fact has to be recorded by the court.
9.1.4 Dumb Witnesses
Section 128 deals with the evidence of dumb witnesses. According to this section, a
dumb witness can give evidence in any other manner in which he can make it intelligible.
A dumb witness either by writing or by signs can make intelligible of what he has to
speak. If he is able to communicate his statement perfectly by writing, it is a more
satisfactory method of taking evidence. When a dumb witness is not able to write, then
he can make signs showing what he wants to say. If it is by signs, those signs must be
made in open court. The interpreter of the signs must be sworn.
Evidence given by a dumb witness as aforesaid, according to section 128(2) shall be
deemed to be oral evidence.
9.1.5 Privilege of Court
According to section 129, judges or magistrates are not compelled to answer any
question as to his own conduct in court as a judge or magistrate as to any matter that
came to his knowledge in court as a judge or magistrate. However, the judge or
magistrate may be examined:

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• Upon a special order of some court to which he is subordinate

• As to any other matters which occurred in his presence whilst he was so acting.
9.1.5 Evidence of Spouses
Section 3 defines spouses.
According to section 130(1), spouses are competent but not compellable witnesses for the
prosecution. However, there are exceptions whereby a spouse may be a competent and
compellable witness against the other spouse for the prosecution, these are under section
130(2) the wife or husband whether of a monogamous marriage or not shall be a
competent and compellable witness for the prosecution where:
• The person is charged with an offence under Chapter XV of the Penal Code Cap. 16
(offences against morality) and under the Law of Marriage Act, Cap. 29.
• The person charged with an act or omission affecting the person or property of
husband or any wives of a polygamous marriage of that person or children of either
or any of them.
Section 130(3) requires the court to inform a witness that he/she is not compelled to give
evidence against her/his spouse for the prosecution. However, if the provisions of section
130(2) apply, the court will do away with this requirement. Before the court can take
evidence of a spouse, it must record that it had complied with the provisions of this
section. In the case of Akechi v. R. (1971) HCD n. 384, the appellant was charged with
arson. His wife was called to give evidence for the prosecution. Before she gave evidence
trial magistrate asked the appellant whether he has any objection to his wife giving
evidence against him. Appellant had none, the wife gave her testimony. It was held:
This was not in accordance with the provisions of section 130(3) Evidence Act,
that subsection requires the court to address not the appellant but his wife and to
inform her that she was under no obligation to testify against her husband but that
she may give evidence against him if she choose to do so.
Kisanga, J., said:
It is not enough for the court of law to ask the spouse if he/she has objection to
the other spouse to testify. The court shall ensure that the spouse is made aware to
the provision of subsection (3) of section 130 and that has to be recorded.
In Kotia Mwamahusi v. R. 1975 LRT n. 19, the appellant had two wives and decided to
get rid of one of them (he murdered her). At the trial one of the co-wives was compelled
to testify. On appeal the conviction was quashed though there were other ample evidence
to convict the accused.
Section 130(4) provides that a spouse is a competent witness for the defence. However,
before a spouse can testify for the defence, the husband whether of a polygamous
marriage or not, or the wife shall make an application before the court to have his/her
spouse testify for him/her. In the case of Mtoakodi v. R. [1969] E.A. 422, the appellant
had more than one wives. He applied before the trial court for one of the wives to be
called as a witness. The trial court said that either he call all of them or none. On appeal:
It was wrong for the court to deny him the evidence which is contrary to the
provision of section 130(4).

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According to section 130 (5) when a spouse is called to give evidence for the defence and
refuses to do so, the court as well as the prosecution on its own discretion may comment
on the failure to give evidence for the defence.
The protection that is given to spouses in criminal proceedings is not given in civil
proceedings, thus according to section 131 a husband or wife is a competent and
compellable witness to testify against his/her wife/husband.
9.1.6 Privilege relating to official Records
Section 132 deal with the production of unpublished official records and communications
received by public officer in the course of his duty. Such records or communications
shall not be admissible if the Minister on oath states that he has examined the contents of
the document and it of the opinion that the production would be prejudicial to the public
interest.
9.1.7 Information as to Commission of Offences
Section 133 places a prohibition on compelling the magistrate, police officer or revenue
officer to say from which source he had received the information regarding the
commission of an offence. It is absolutely for the welfare of the state that the names of
spies, decoys or informers should not be disclosed for otherwise be it from fear or shame
or the dislike or being mixed up in enquiries of this nature, few men would choose to
assume the disagreeable part of giving or receiving information respecting offences and
the consequences would be that a great many crimes would pass unpunished.
9.1.8 Professional Communication
According to section 134 advocates are not allowed to disclose communications made to
them in the course and for the purpose of their employment unless by express consent of
their clients. This section is based on the principle that if communication to an advocate
were not privileged a man would be deterred from fully disclosing his case so as to
obtain proper professional aid ina matter in which he is likely to be thrown into litigation.
This section not only protects the advocate from disclosing communications made to him
by his client when interrogated as a witness, but he is not permitted to do so even if he is
willing to give evidence unless with the express consent of his client. This section has
been enacted for the protection of the client and not of the lawyer. “Confidential
communications passing between a client and his legal adviser and made for the purpose
of obtaining or giving legal advice are in general, privileged from disclosure. The
privilege is available in respect of the oral testimony of witnesses, and the principles
which determine whether a communication is or is not privileged are the same for both
oral and written communications. The privilege is that of the client and may be waived
by him”.29
The privilege however, does not cover where:
• The communication was made in furtherance of an illegal purpose, e.g. A, a client
says to B, an attorney “I wish to obtain possession of property by the use of a forged
deed on which I requested you to sue.”
This communication being made in furtherance of a criminal purpose is not protected
from disclosure.
29
Halsbury Laws of Evidence, 4th., Vol. 17, Para 237 page 166.

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• In the proceedings where the professional conduct of the advocate himself is or might
be in issue.
• Any act observed by the advocate in the course of his employment showing that a
criminal offence has been committed since the commencement of his employment.
This communication is not privileged even where the advocate was not aware of the
fact, e.g. A, being charged with embezzlement, retains B, an attorney to defend him.
In the course of the proceedings, B observes that an entry has been made in A’s book
charging A with the sum said to have been embezzled which entry was not in the
book at the commencement of his employment. This being a fact observed by B in
the course of his employment, showing that a fraud has been committed since the
commencement of the proceedings, it is not protected from disclosure.
9.1.9. Section 134 Apply to Interpreters etc
Section 135 extends the privilege given under section 134 to interpreters, clerks or
servants of lawyer.
9.1.10 Privilege no waived by volunteering evidence
Section 136 provides that it if a party to the suit gives evidence he shall not deemed to
have consented to any disclosure as mention is section 134. Furthermore, this section
says that the privilege would not be lost even if the advocate is called as a witness unless
the party questions him on a particular point. The privilege belongs to the client and he
alone can waive it. The privilege is not lost by calling the advocate as a witness unless
the party having the privilege questions him relating to confidential matter.
9.1. 11 Confidential Communications with Legal Advisers
Section 137 states that no one shall be compelled to disclose to the court any confidential
communication which has taken place between his legal advisers. However this privilege
is subject to a condition, namely if he offers himself as a witness he may e compelled to
disclose any such communications which may appear to the court necessary in order to
explain any evidence he has given in the court. This section provides protection to any
witness including the client while the sections we discussed above i.e. sections 134, 155
and 136 provide protection to the legal adviser, his clerks etc. from disclosing
confidential communication between them and the client. If protection is not provided
from the client as was done in this section the protection given to the advocate or legal
adviser under sections 134, 135 and 136 would become illusory.
9.1.12 Production of Title-deeds of Witness not a Party
According to section 138, a witness who is not a party to the suit shall not be compelled
to produce:
• Title-deed to any property or
• Any document in virtue of which he holds any property or mortgagee or
• Any document the production of which might tend to incriminate him unless he has
agreed in writing to produce such document.
If the witness refuses to produce hi title deed, as he cannot be compelled to produce it,
the party who wants its production may be allowed to give secondary evidence of the
contents of the document.

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9.1.13 Production of Incriminating Documents

Under section 139, a witness who is not a party to a suit shall be compelled to produce
document which if produced may incriminate him. However, the witness may agree the
production of that document only in writing.
9.1.14 Witness not Excused from Answering on Ground that Answer will
incriminate
According to section 141 a witness shall not be excused from answering any question as
to any matter relevant to the matter in issue in any suit or in any civil or criminal
proceeding upon the ground that the answer to such question will incriminate or may
tend to directly or indirectly expose him to a penalty or forfeiture of any kind. The safe-
guard to this expulsion is that no such answer to which the witness is compelled to give
exposes him to any arrest or prosecution or can it be proved against him in any criminal
proceeding except in prosecution for giving false evidence to such answers. This
privilege is based on the policy of encouraging persons to come forward with evidence in
courts of law by protecting them as far as possible from injury or needless annoyance in
consequence of so doing.
In the case of Ernest Joseph Nyatando v. R. [1983] T.L.R 170 the appellant was
convicted of stealing by public servant and being in unlawful possession of offensive
weapons. After conviction the trial court was of the opinion that a greater punishment
should be inflicted for the offense than the court had power to inflict and it accordingly
committed the appellant to the High Court for sentence. Dissatisfied by the finding and
order of the lower court the appellant appealed to the High Court. The court held that
where a witness incriminates himself when giving evidence for the prosecution he
become immune by virtue of section 141 of the Evidence Act, 1967 from being
prosecuted on the basis of the evidence he gives.
9.1.15 Evidence in Offences of Receiving
According to section 141A for the purpose of proving guilty knowledge where a person
is charged with the offence of receiving any property, there may be given in at any stage
of the proceedings:
• Evidence that the property stolen or fraudulently obtained was found in him
possession within a period of twelve months preceding the commission or discovery
of the commission of the offence.
• Evidence of conviction of an offence involving fraud or dishonest within a period of
five years preceding the date of the offence with which he is charged.
However, according to section 141A (2) before such proof of possession under section
141A(1) (b) can be offered the following has to be complied with:
• A written notice of intention to rely on previous conviction or charge has to be given
to the accused or his advocate at least three days before such evidence is offered.
• Evidence must be given first that the property subject to the charge was found or had
been in possession of the accused.

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9.1.16 Accomplice’s Competence as Witnesses

An accomplice is a person who participates in the commission of an actual crime charged
against an accused. In the case of Wanja Kanyoro Kamau v. R. [1965] E.A. 501 the
court defined who an accomplice is and laid down the following principle:
“While a person who aids and abets the commission of a crime or assists the
guilty person to escape punishment is always an accomplice, a person who
merely acquiesces in what is happening or fails to report a crime is not normally
an accomplice, but the weight to be given to such person’s evidence will vary
according to the reason for the acquiesce. If it was apparently based on approval
of the crime, the evidence will be treated as no better than of an accomplice; if it
was on indifference, the evidence will be treated with considerable caution; but
if, for example it was the result of fear, there is no reason why the evidence
should not be relied on.”
The case of Davies v. DPP [1954] AC 378 defined accomplices as:
• Persons are accomplices who are participes criminis in respect of the actual crime
charged whether as principal or accessories before or after the fact.
• Receivers are the accomplices of the thieves from whom they receive the goods.
• When evidence is admissible that the accused took part in crime on other occasion as
proving system or intent or as negativiting accident, then those who took part in such
crimes are accomplices.
According to section 142, an accomplice is a competent witness against an accused
person and a conviction is not illegal merely because it proceeds upon the uncorroborated
testimony of an accomplice. This section explicitly provides that a conviction based on
uncorroborated evidence of an accomplice is not illegal. In Queen v. Elahee Buksh,
5WRCCri) 80 (FB) Peacock C.J. observed that:
“I am of the opinion that a conviction upon the uncorroborated testimony of an
accomplice is legal. This is not a new law, nor founded upon new principle. This
point was decided in England as far back as the 10 th Dec. 1662 after conference
with all the judges.”
Normally courts do need corroboration before admitting the evidence of an accomplice.
In the case of Azizi Abdallah v. R. [1991] T.L.R. 71 the court said that:
The purpose of corroboration is not to give validity or credence to evidence which is
deficient or suspect or incredible but only to confirm or support that which is evidence is
sufficient and satisfactory and credible. In the case of R. v. Haji Mohamed Saleh (1933)
15 KLR 109 the court stated that:
“While we do not subscribe to the dictum that the corroboration must be
overwhelming to sustain a conviction, our opinion is that in the absence of
special circumstances or exceptional circumstances, a conviction before a judge
or magistrate sitting alone, resting on uncorroborated accomplice’s evidence is
so dangerous that it should not be held.”
In Bushiri Amiri v. R. [1992] T.L.R. 65 the appellant and another were prosecuted and
convicted for cattle theft. The appellant appeal among other grounds that his co-

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accused’s evidence was given much weight in arriving at his conviction. The High Court
said that, the evidence of a co-accused is on the same footing as that of an accomplice,
that it admissible but must be treated with caution and as a matter of prudence, would
require corroboration.
However, where the court finds that there is no danger of convicting on uncorroborated
evidence of an accomplice it may proceed to do so. In the case of R. v. Thakar Singh s/o
Kahir Singh (1934) 1 E.A.C.A. 110 the court said the following;
“The evidence of an accomplice without corroboration is sufficient not in cases
in which are usually difficult of proof by other mean, nor upon the trial of certain
particular offences, but only when the circumstances of the case and the relation
of the accomplice to the offence committed appear to justify the court in acting
upon his evidence.”
The court went on to state the following:
“But there are exceptional circumstances in which departure from the general
practice [of requiring corroboration] is justified. The criterion as to whether
such exceptional case has arisen is the credibility of the accomplice or
accomplices compared with the weight to be attached to the facts to which they
justify. The principal facts to be considered when assessing their credibility are
not only their demeanour and quality as witnesses, but also their relation to the
offence and the party they played in connection therewith, that is to say, the
degree of their criminal complicity in law and fact. A departure from the general
rule of practice is only justifiable where, on applying the criterion in the manner,
it clearly appears that the accomplice evidence is so exceptionally cogent as to
satisfy the court beyond reasonable doubt, and where accordingly the judge or
judges of fact, while conscious of the inherent danger of any such departure, is or
are convinced that in the particular instances concerned the danger disappear.”
In the case of Fanuel Joseph Mbedule v. R. [1989] T.L.R. 221 the court said that under
section 142 of the Tanzania Evidence Act a conviction is not illegal merely because it
proceeds upon the uncorroborated testimony of an accomplice. In Pascal Kitigwa v. R.
[1994] T.L.R. 65, the appellant together with two others were jointly charged and
convicted of robbery with violence. On appeal, he argued that it was wrong for the trial
court to convict on the evidence of a co-accused. The Court of Appeal held that:
• Evidence from a co-accused as in this case is accomplice’s evidence and a court may
convict on accomplice’s evidence without corroboration if it is convinced that the
evidence is true, and provide it warns itself of the dangers of convicting on
uncorroborated accomplice’s evidence.
• Although the law does not say that conviction on uncorroborated accomplice’s
evidence is illegal, it is still unsafe, as a matter of practice, to uphold a conviction
cased on the uncorroborated evidence of a co-accused.
It is unsafe to find a conviction on the uncorroborated evidence of an accomplice. Thus
the court has to warn itself on the dangers of basing a conviction on uncorroborated
evidence of an accomplice. Failure of the magistrate to warn himself of the dangers of
relying on uncorroborated accomplice evidence will result in a conviction being quashed

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on appeal, even though there is in fact corroboration, unless no failure of justice has been
occasioned.30
The court requires corroboration of accomplice’s evidence only the evidence is given for
the prosecution in the case of Mwangi Duho v. R. HC (Tanzania) Crim. App. No. 332
of 1965 the court said that:
“There is no rule of law which requires the evidence of defense witness to be
treated with caution in the absence of any corroboration. The rule as to
corroboration of the evidence of an accomplice is applicable in my opinion, only
to evidence of an accomplices giving evidence for the prosecution evidence
without corroboration. Naturally [evidence given by a defense witness who was
an accomplice] would be subjected to scrutiny before it is accepted but it does
not under any circumstances require corroboration as a rule of law or practice
even where it tends to support the case of the prosecution to prove the guilt of an
accused.”
There are situation where a witness may not be an accomplice but may have an interest in
the subject matter in issue. In this case the testimony will be treated with great suspicion.
In the case of Paulo Murimi v. R. 1977 LRT n. 34 the court said that where it appears
that a witness may have some purpose of his own to serve in giving evidence, the court
should warn itself as a matter of practice of the danger of acting on his own
uncorroborated evidence similar to that which is given in the case of an accomplice. In
the case of Asia Iddi v. R. [1989] T.L.R. 174, the appellant was convicted on the
strength of a co-accused’s confession together with independent testimony of witnesses.
On appeal it was held that evidence of a person who has an interest to serve also needs
corroboration as such it cannot be used to corroborate other evidence.
In sexual offences, the victims are not accomplices however; courts do require
corroboration and in most cases, do warn themselves on the danger of convicting on
uncorroborated testimony of the complainant. In sexual offences corroboration is
peremptory because sometimes it is difficult to prove since what is required to be proved
is not the actus reus but lack of consent on the part of the victim.
Section 127(7) provides that where in cases involving sexual offences the only
independent witness is a child of tender years or a victim of the offence, the court is
supposed to assess the credibility of such witness and if it is satisfied that the witness is
telling nothing but the truth, it may proceed to convict on uncorroborated evidence.
However, the court has to record the reasons for its finding. The word “the court is
satisfied that the child of tender years or the victim of the sexual offence is telling
nothing but the truth” imply that still the court will in some cases seek for corroboration.
In the case of Shiku Salehe v. R. [1987] T.L.R. 193 the appellant was charged with and
convicted of the offence of rape. The conviction was based solely on visual identification
and uncorroborated testimony of the raped victim. The issue on appeal was whether the
conviction was proper. It was held that in sexual offences the court should warn itself of
the dangers of acting on uncorroborated testimony of the complainant and having done so
court may convict if it is satisfied that the victim’s evidence is true. In Moses Deo v. R.
[1987] T.L.R. 134 the court said that in sexual offences if the person against whom the
offence is alleged to have been committed be an adult the court should warn itself that it
is not safe to convict on the uncorroborated evidence of the complainant but if it is
30
Joseph s/o Jeremiah v. R. (1954) 21 E.A.C.A 279.

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satisfied of the truth of the complainant’s evidence, it may, after paying attention to the
warning nevertheless convict.
When the police use decoy or traps is not the evidence of an accomplice but their
evidence should be corroborated. In the case of Mohamed Katindi and another v. R.
[1986] T.L.R. 134, the appellants were charged with and convicted of corrupt transaction
with an agent. Although there were five prosecution witnesses at the trial the appellants
were convicted solely on the evidence of one witness, the Regional Crime Officer. In
their unsworn statements the appellants alleged that they gave the Regional Crime
Officer Shs. 6,000/= to foot expenses incurred by the police in looking for the second
appellant as instructed by the Regional Crime Officer. The Regional Crime Officer was,
however not cross-examined by the defense on this crucial point while he was in the
witness box. On appeal the appellants argued that the prosecution had failed to prove its
case beyond reasonable doubt because the Regional Crime Officer was an interested
party and that his evidence was suspect. The court said that although the Regional Crime
Officer was not an accomplice, he was a decoy who was not a disinterested witness and
his evidence had to be examined closely, and that though in such circumstances
corroboration would not be required as a matter of law, it would hardly ever be safe in
practice to convict unless there was corroboration.

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THE EXAMINATION OF WITNESSES
1.1 The Order of Production of Witnesses

Section 144 states that the order in which the witnesses are to be produced and examined
shall be regulated by the rules of law and practice relating to civil and criminal
proceedings. It also states that in the absence of any rules and practices the court has got
discretion to regulate the order in which the witnesses are to be produced and examined.
In civil proceedings the order is to be regulated by the provisions of the Civil Procedure
Code, Cap. 33 R.E. 2002 and in criminal proceedings by the Criminal Procedure Act
Cap. 20 R.E. 2002. failing these the order is to be determined by the discretion of the
court.
In civil cases it is the plaintiff who normally has the right to begin, and if he has
witnesses he then produce them. After the closure of his case, the defendant produces his.
Similarly, in criminal cases the prosecution first produces it witnesses and then the
defendant gives evidence himself (if he wishes) and produces his witnesses. The court is
given discretionary powers under section 195 CPA to call witnesses and the prosecution
or the defense has the right to cross-examine such witnesses.
10.1.2. Court to Decide on Admissibility of Evidence
According to section 145(1) the court is supposed to ask the party proposing to adduce
evidence of any fact the manner in which fact if proved would be relevant.
Where the court thinks that the fact if proved would be relevant, then under section
145(2) it is supposed to admit such evidence.
Example
It is proposed to prove a statement about a relevant fact of a person alleged to be dead,
which statement is relevant under section 34. The fact that the person is dead must be
proved by the person proposing to prove the statement before evidence is given of the
statement.
Where the fact proposed to be proved is admissible only upon proof of some other fact,
then according to section 145(3) the last mention fact must be proved first before
evidence is given of the first fact.
Example
It is proposed to prove by a copy the contents of a document said to be lost. The fact that
the original is lost must be proved by the person proposing to produce the copy before
the copy is proved.
In a situation where the relevancy of one alleged fact depends upon another alleged fact
being proved first, then under section 145(4) the court exercising its discretion may
permit either the first or the second fact to be proved first.
Example
A is accused of receiving stolen property knowing it to have been stolen. It is proposed to
be proved that he denied the possession of the property. The relevancy of the denial
depends on the identity of the property. The court may in its discretion either requires the

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property to be identified before the denial of the possession is proved, or permit the
denial of the possession to be proved before the property is identified.
10.1.3. Examination of Witnesses
The examination of witness viva voce, it is always the form of questions and answers.
The deposition is usually taken down in the form of a narrative out of the answers. Where
a question is objected to and yet allowed by the court to be put, the question and its
answer are taken down verbatim.31
The examination of witnesses generally takes three stages:
• The examination-in-chief section 156(1), this is done by the party who calls the
witness.
• Cross-examination section 146(2), the examination of a witness by the adverse party.
• Re-examination section 146(3), this is the examination of a witness subsequent to the
cross-examination by a party calling him.
10.1.4. Order and Direction of Examination
Section 147(1)-(3) provides that a witness must be first examined-in-chief, then if the
adverse party so desire cross-examine him, and if the party calling him so desire re-
examine him. It provides also that the examination-in-chief must relate to the relevant
facts only, while cross-examination need not, the opposite party has a right to put other
questions and need not be confined to the facts stated by the witness in the examination-
in-chief. The section further states that re-examination should be confined only to explain
matters referred to in the cross-examination, with the permission of the court the opposite
party may further cross-examine the witness. The court has discretion of permitting a
witness to be called further examine-in-chief, or cross-examine, in such a case, the
parties have a right for further cross-examination and re-examination. The court may stop
or may permit to be stopped examination or cross-examination of any witness until any
other witness(s) have been examined-in-chief, cross-examined or as the case may be
further examination-in-chief or further cross-examination.
• Examination-in-chief
Examination-in-chief is ordinarily in the form of connected narrative brought out by
questions asked to the witness by the party calling him. According to section 147(2) it
must be related to the relevant facts. Leading questions are not allowed (s. 151(1)). It is
the duty of the prosecution to bring out clearly and in proper chronological order every
relevant fact in support of its case, to which the witness can depose. “The task is more
difficult than may at first sight appear. The timid witness must be encouraged, the
talkative witness repressed; the witness who is too strong a partisan must be kept in
check. And yet the counsel must not suggest to the witness what he is to say. An honest
witness, however, should be left to tell his tale in his own way with as little interruption
from the counsel as possible.”32
31
Chandrachul, Y. V. J and Kuppuswani, A.J., Rantalal & Dhirjlal The Law of Evidence, 20 th Edn.,
Wadhwa Nagpur, New Delhi, India.
32
Powel, 10th End., p. 458.

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In examination-in-chief witnesses are not allowed to express their opinion, “unless

evidence of reputation be admissible, witnesses, must, in general merely speaking to facts
within their knowledge, and they will not be permitted…to express their own belief or
opinion…though a witness, in general, must depose to such facts only as are within his
own knowledge, the law does not require him to speak with such expression of certainty
as to exclude all doubts. For, whatever may be the nature of the subject, if the witness has
any personal recollection of the fact under investigation, he may state what he remembers
concerning it and leave the jury or judge the weight of his testimony. If the impression on
his mind so slight as to justify the belief that it may have been derived from others, or
may be some unwarrantable deduction of his own dull understanding or lively
imagination, it will be rejected.”33
• Cross-examination
The right of cross-examination is a statutory right which vests in a party to the
proceedings. The objects of cross-examination are to impeach the accuracy, credibility
and general value of the evidence given in examination-in-chief; to shift the facts already
stated by the witness, to detect and expose discrepancies or to elicit suppressed facts
which will support the case of the cross-examination party. “The object of cross-
examination is two fold—to weaken, qualify, or destroy the case of the opponent; and to
establish the party’s own case by means of his opponent’s weakness.”34
Halsbury35 stated that “cross-examination is directed to:- (1) The credibility of the
witness (2) the facts to which he had deposed in-chief, including the examiner’s version
thereof: and (3) the facts which the witness had not deposed but to which the cross-
examiner thinks he is able to depose.”
• Re-examination
The object of re-examination is to afford the party calling a witness an opportunity of
filling in lacuna or explain the inconsistencies which the cross-examination has
discovered in the examination-in-chief of the witness. The purpose of re-examination is
to give an opportunity to the party who called the witness to explain any part of the cross-
examination which is capable of being construed unfavourable to the party who called
him. However, new matters cannot be allowed to be introduced in evidence without the
permission of the court.
The party who calls a witness has the right to re-examine him on all matters arising out of
the cross-examination for the purpose of reconciling any discrepancies that may exist
between the evidence in examination-in-chief and that which has been given in cross-
examination or for the purpose of removing or diminishing any suspicion that the cross-
examination may have cast on the evidence-in-chief or to enable the witness to state the
whole truth as to matters which have only been partially dealt with in cross-
examination.36
33
Taylor, 12th Edn., ss. 1414-15, pp.898-99.
34
Phispon on Evidence, 15th Edn., (2002), para 11-17, page 249.
35
Halsbury 4th Edn., Vol. 17, para 278, page 194.
36
Powel, 10th Edn., p. 469.

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10.2 Examination of Witnesses

10.2.1 Cross-examination of Person Called to Produce Document
According to section 148 a person who has been summoned to produce a document will
not become a witness by the mere fact that he produces it and he cannot be cross-
examined unless and until he is called as a witness. The words unless and until he is
called as a witness appearing in this section means that a person si summoned to depose
and he is sworn. When a person is sworn it gives the opponent a right of cross-
examination although he may not be examined-in-chief after administration of oath.
10.2.2 Witness to Character
Section 149 states that witnesses who give evidence as to character may be cross-
examined and re-examined. “Witnesses to the character of parties are in general treated
with great indulgence,-perhaps too much. Thus it is not the practice of the bar to cross-
examine such witnesses, unless there is some specific charge on which to found a cross-
examination or at least without giving notice of intention to cross-examine them, if they
are put in the box. The judges also discourage the exercise of the undoubted right of
prosecution counsel to rely on their testimony, and the most obvious perjury in giving
false characters for honesty etc., is everyday either overlooked or dismissed with a slight
reprimand. But surely this mercy out of place. If mendacity in this shape is not
discouraged a tribunal will naturally be induced either to look on all character evidence
with suspicious or to attach little weight to it. Now there are many cases in which the
most innocent man has no answer to oppose to a criminal charge but his reputation and to
deprive this of any portion of the weight legitimately due to it, is to rob the honest and
the upright citizen of the rightful reward of his good character…The use of character
evidence is to assist the jury in estimating the value of the evidence brought against the
accused and we cannot dismiss this subject without directing attention to the shrewd
observations of Holt, C.J.37 “A man is not born a knave there must be time to make him
so, nor is his presently discovery after he become one. A man may be reputed an able
man this year, yet be a beggar the next.””38
10.2.3 Leading Questions: Whey they Must not be Asked, When they may be Asked
Section 150 defines leading question, section 151 provides that leading questions must
not be asked in examination-in-chief if objected by adverse party and section 152 permits
leading questions in cross-examination of a witness.
“Leading question is one which either (a) suggests the answer desired, or (b) assumes the
existence of disputed facts as to which the witness is to testify.” 39 In the case of Nicholas
v. Dowding (1815) 1 Stark 81, Lord Ellen-Borough observed that a leading question is a
question framed in such a manner that it throw a hint as to, or suggests directly or
indirectly, the answer which the examiner desires to elicit from the witness, e.g. when a
witness called to testify to an alleged assailant on A by B was asked:- “did you see B take
a stick and strike B?” or “Did you not hear his say this?”, they would be leading
questions which suggest the witness the answer desired or which embodying a material
fact, admit of a conclusive answer by a simple negative or affirmative. But a question
that calls for a simple “yes” or “no” answer is not leading…Where “yes” or “no” would
37
R. v. Swendson (1702) 14 How St Tr 496.
38
Best pm Evidence, 8th Edn., section 262, pp 48, 249.
39
Stephen in his Digest of Law of Evidence, 12th Edn., art. 140.

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be conclusive on any part of the issue, it would be equally objectionable: a question is

objectionable as leading when it suggests the answer, not when it merely directs the
attention of the witness to the subject; respecting which he is questioned.
The exclusion of leading questions at the stage of examination-in-chief is based on two
reasons:-
“First, and principally, on the supposition that the witness has bias in favour of the party
bringing him forward, and hostile to his opponent. Secondly, the party calling a witness
has an advantage over his adversary, in knowing before hand what the witness will prove,
or at least expected to prove; and that, consequently, if he were allowed to lead, he might
interrogate in such a manner as to extract only so much of the knowledge of the witness
as would be favourable to his side or even put a false gloss upon the whole.”40
The prohibition of putting leading questions in examination-in-chief and re-examination
is not absolute, the court may allow such questions through objected to as leading
questions. Discretion of the court largely rests with the trial court and depends on the
circumstances, as demeanour of witnesses, the tenor of the proceedings questions etc. 41
Phipson states that the rule is relaxed in the following cases:
“As the rule merely intended to prevent the examination from being conducted unfairly,
the judge has a discretion, which is not open to review, to relax it when he considers it
necessary in the interests of justice. It is always relaxed in three cases: introductory or
undisputed matters; assisting memory; contradiction.”
The rule will be relaxed where the inability of a witness to answer questions put in the
regular way, obviously arises from defective memory, on account of illness, illiteracy,
old age or failing memory.”42
“….The object of putting leading questions to such a witness is to revive or refresh his
memory by drawing his attention to a particular topic, without suggesting any answer.”43
10.2.4 Evidence as to Matters in Writing
Section 153 meant to enable parties to carry out the provisions of sections 100 and 101. it
refers both to the examination-in-chief and cross-examination. A party can compel the
opposite party to produce a document [or to make out a case for letting in its secondary
evidence]—
• When a witness is about to give evidence as to any contract, grant or other disposition
of property, which is contained in a document;
• When he is about to make any statement as to the contents of any document.
10.2.5 Cross-examination as to Previous Statements in Writing
According to section 154, a witness may be cross-examined as to any statement as to
relevant facts made by him on a former occasion in writing or reduced to writing without
showing the writing to him or proving the same. But if it is intended to contradict him by
the writing his attention must be called to the writing.
40
Best on Evidence 8th Edn., section 641, p. 591.
41
42
Best on Evidence, 10th Edn., section 642.
43
Lord Ellen-Borough in Acerro v. Petron, 1 Stark 100.

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The object of this section is either to test the memory of a witness or to contradict him by
previous statements in writing. The writing may be documents, letters, depositions,
police diaries etc.
Halsbury44 observed that “A witness may also be cross-examined as to a previous
statement made by him in writing, without the writing being shown to him. 45 But if it is
intended to contradict him by such writing his attention must be called to those parts of
the writing which are useful for that purpose 46 and the judge may, at anytime during the
trial, require production of the writing for his own inspection and he may thereupon make
use of it for the purpose of the trial as he thinks fit.”
In the case of Magoti s/o Matofali (1953) 20 E.A.C.A. 232, the committing magistrate’s
court clerk was called to prove a deposition which was used to impeach the credibility of
a prosecution witness. It was held that where the defence wishes to impeach a
prosecution witness’s credibility by the use of his deposition before the committing
magistrate the provisions of section 145 of India Evidence Act [section 154 of Tanzania
Evidence Act] must be observed. The procedure to be followed under section 154 was
commented in the same case, where it was said:
“If the witness can read the deposition, he should be shown the part which is alleged to
contradict his evidence and be asked: Do you adhere to that? Or did you say that? If he
cannot read, the passage should be read over to him and he should then be asked the
question. Counsel cross-examining is bound by the witness’s answer unless the
deposition is put in to contradict him, and it is not permissible for counsel to state that the
deposition does contradict the witness unless it is so put in.”
A witness may be questioned as to his previous statements for two purposes:
• It may be that his memory and the very object would be defeated if the writing were
placed in his hand before the questions were asked;
• It may be to contradict him, and here it would be obviously unfair not to give him
every opportunity of seeing how the matter really stands.47
10.2.6 Questions Lawful in Cross-examination
Section 155 gives the cross-examiner more powers than those given under section 147.
Under this section, the cross-examiner may put questions to test the veracity, discover
who the witness is and what his position is in life or to shake his credit by injuring
character, although the answer to those questions might tend directly or indirectly to
incriminate him.
Section 155(a) applies where the veracity of a witness is in question. The veracity of a
witness is to be tested with reference to the answers given in the cross-examination
which is aimed at obtaining some admission favourable to the cross-examining party or
at discrediting the witness. “My Lords, I have always understood that if you intend to
impeach a witness, you are bound, whilst he is in the box, to give an opportunity to
making any explanation which is open to him; and, as it seem to me, that is not only a
44
Halsbury’s Laws of England 4th Edn., Vol. 17, para 284, page 198.
45
North Australian Co. v. Goldsborough & Co. (1893) 2 Ch. 381 CA.
46
R. v. Yousry (1914) 11 Cr. App. R. 13, 18.
47

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rule of professional practice in the conduct of a case, but it is essential to fair play and
fair dealing with witness.”48
Under section 155(b) questions may be put to a witness during cross-examination in
order to discover who he is and what is his position in life. As preliminary to the cross-
examination of a witness as to facts in the case, it is common practice to make enquiry
into his relations with the party on whose behalf he was called; e.g. business, social,
family etc., it is also done in order to shake his credit, to inquire as to his feelings towards
the party against whom his testimony has been given. Credibility of a witness does not
depend on the status of a witness would be of no any help, to discredit a witness. Sections
154, 158 and 164 indicate that the credit of a witness can be said to have been shaken
only if it can be shown that he is not a man of veracity and not that he is of bad moral
character.
Section 155(c) enables the cross-examiner to put questions to a witness injuring the
character of a witness to shake his credit.
Sections 155 to 161 deal with questions which can be put to a witness with a view to
shake his credit by damaging his character. Generally, character evidence is not relevant
to decide any issue in a case, except to the extent given in sections 54 to 56, however,
under section 155(c) the cross-examiner is entitled to put questions regarding character of
the witness for the purpose of discrediting his testimony.
10.2.7 When Witnesses to be Compelled to Answer
According to section 156, if any question asked under section 155 relates to a matter
relevant to the suit or proceeding, then the provisions of section 141 shall apply thereto.
The witness cannot be compelled to give an answer if he can claim privilege.
10.2.8 Cross-examination of Accused Person
According to section 157, a person charged with an offence and called as a witness for
the defense may be asked any question notwithstanding that the answer may tend to
incriminate him as to the offence charged.
10.2.9 Court to Decide when Questions shall be Asked and when

Witness Compelled to Answer
Section 158 generally deals with the exercise of discretion by the court while deciding
whether a witness should be compelled to answer a question in cross-examination or not.
This section provides that if any such question relates to a matter not relevant to the suit
or proceedings, except the questions put to discredit the witness by injuring his character
the court shall decide whether the witness is to be compelled to answer or not, if the court
thinks that it is not relevant, it can warn the witness that he is not obliged to answer such
questions.
The provisions of section 158(2) (a) indicate that the principle on which the court should
proceed in protecting witnesses from reckless and unjustifiable interrogations. The
witness’s past should not be racked up and brought into publicity merely because he
obediently came forward to testify as required by the law.
48
Lord Herschell, p. 70.

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According to section 158(a) and (b) questions are improper if the imputation which they
convey relate to maters remote in time. Wigmore 49 observes: “The correct solution seems
to be that prior character at any time may be admitted as being relevant to show present
character, and therefore, indirectly, to show the probability as to truth speaking. The only
limitation to be applied is that the character must not be so distant in time as to be void of
real probative value in showing present character, this limitation is to be applied in the
discretion of the trial court.”
The question would be improper under section 158(2) if there is a great disproportion
between the importance of the imputation made against the witness’s character and
importance of his evidence.
Section 158(3) provides that the court may presume or draw inference when the witness
refuses to answer in that the answer given would be unfavourable to him. The word
“may” express that it is in the discretion of the court whether to draw an inference or not
such an inference depending upon the facts of each case.
Taylor once observed that: “It has been started more than once, that, if the witness
decline to answer, no inference of the truth of the fact can be drawn from that
circumstance, but the soundness of this rule is very questionable; and although it would
be going too far to say that the guilt of the witness must be implied from his silence, it
would seem that, in accordance with justice and reason, the jury should be at full liberty
to consider that circumstance, as well as every other, when they come to decide on the
credit due to the witness. A perfectly honourable but excitable man may occasionally
repudiate a question which he regards as an insult, and to infer dishonour from his
conduct would, of course, be unjust, but, generally speaking, an honest man will be eager
to rescue h is character from suspicious and will at once deny the imputation, rather than
rely on his legal rights, and refuse to answer the offensive interrogatory.”50
10.2.10 Questions not to be Asked Without Reasonable Grounds
Section 159 provides that questions which are contemplated under section 158 out not to
be asked unless the person asking the question has reasonable ground for thinking that
the imputation which it conveys is well founded. The cross-examiner must have
reasonable grounds to believe that the imputation made against the witness is well-
founded.
10.2.11 Indecent and Scandalous Questions
Section 160 empowers the court to forbid any questions which are indecent or scandalous
even if they may have some bearing on the questions before the court except where they
relate to the fact in issue. Tylor 51 observes: “There is a fifth kind of evidence which the
law excludes on public grounds, namely, that which involve the unnecessary disclosure
of matter that is indecent, or offensive to public morals or injurious to the feelings of
third persons. A disclosure is for this purpose unnecessary whenever the parties
themselves have not interest in the matter, except what they have impertinently created.
The mere indecency of disclosures will not exclude them, where the evidence is
necessary for the purpose of civil or criminal justice as on an indictment for rape; or on a
question upon the sex of one claiming an estate tail, as heir male or for female; or upon
49
Wigmore on Evidence, section 920.
50
Taylor 8th Edn., sections 1321 and 1467.
51
Tylor on Evidence 10th Edn., section 494, p.675.

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the legitimacy of one claiming as lawful heir; or on a petition for dissolution of marriage,
for judicial separation or for damages on the ground of adultery.”
10.2. 12 Questions Intended to Insult or Annoy
Section 161 empowers the court to forbid questions which are intended to insult or annoy
or though the questions are proper, appear to court needlessly offensive in form. Under
section 160 as seen above, the court has discretion to forbid the questions which are
indecent or scandalous (may), but the case is different under section 161 where the court
has no discretion (shall).
10.2. 13 Exclusion of Evidence to Contradict Answers to Questions
Testing Veracity
Section 162 provides that when a witness is asked a question which is relevant to the
enquiry in so far as it tends to shake his credit by injuring his character, no evidence shall
be given to contradict him—whatever answer is given by the witness is conclusive. E.g.
A witness is asked whether he was not dismissed from his employment for dishonest. He
denies it. Evidence is offered to show that he was dismissed for dishonest. The evidence
is not admissible.
The object of this section is to prevent trials being prolonged to an unreasonable length.
If every answer given by a witness upon the additional fact mentioned in section 155
could be made the subject of fresh enquiry, trial would never end.
This section provides two exceptions i.e. section 162(a) and (b), where evidence can be
given to contradict the denial where the question is denied by the witness. Section 162(a)
states that when a witness is asked whether he was convicted previously and he denies it,
evidence may be given of his previous conviction. Section 162(b) says that when a
question is asked tending to impeach a witness’s impartiality and it is denied, evidence
can be given to contradict the denial. E.g. A affirms that on a certain day he saw B at
Arusha. A is asked whether himself was not on that day at Moshi. He denies it. Evidence
is offered to show that A was on that day at Moshi. Evidence is admissible not as
contradicting A on a fact which affects his credit, but as contradicting the allege fact that
B was seen on that day in question at Arusha.
The rule in this section is meant to curtail every inquiry, if contradictory evidence be
allowed on side issues e.g. as shaking the credit of a witness by injuring his character
there can be no limit to enquiry. The two exceptions on this section are capable of easy
proof and are material in assessing the weight to be attached to the evidence of an
individual witness. In the case of Attorney General v. Hitchcock (1847) 1 Ex. 91, the
court said that:
“The rule is founded on two reasons—first, that a witness cannot be expected to come
prepared to defend by independent proof, all the actions of his life; and next, that to
admit contradictory evidence on such points would of necessity lead to collateral issues.
The rejection of contradictory testimony may indeed sometimes exclude the truth; but
this evil, acknowledged though it be, is nothing compared with the inconveniences that
must arise where a contrary rule is to prevail.”

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10.2.14 Questions by Party of his own Witness

According to section 163, the court may allow a party to put questions to its own witness
which might be put in cross-examination by the adverse party. The court may use its
discretion to allow the party to put such questions to its own witness because the duty of
the court is to find truth from both parties. The witness can be asked;
• Leading questions under section 152.
• Questions relating to previous statements in writing under section 145.
• Questions which tend to test his veracity under section 155.
When a party calling a witness and examining him discovers that he is either hostile or
unwilling to answer questions put to him, he can obtain permission of the court to put
questions to him which may be put to him by way of cross-examination. The section does
not say that a person who calls a witness may cross-examine him in certain
circumstances, but he might put questions which might be put in cross-examination by
the adverse party, that is not the same as cross-examination.52
10.2.15 Impeaching Credit of Witness
Section 164 enables parties to give independent evidence as to the character of a witness
in order to indicate that he is unworthy of belief by the court. This section indicates four
ways in which the credit of a witness may be impeached:
• Evidence of persons that the witness is unworthy of credit—s.164(1)(a).
• Proof that the witness has been bribed, has accepted the offer of a bribe or has
received any other corrupt inducement—s. 164(1) (b).
• Former statements inconsistent with the present evidence—s. 164(1) (c).
• General immoral character of the prosecutrix in cases of rape or attempt rape—s.164
(1) (d).
We see that section 54 deals with relevancy of character evidence whereas this section
i.e. s. 164 prescribe the manner of impeaching the credit of a witness, thus, it cannot be
construed as an exception to section 54. Furthermore, sections 164 and 155 are not in
conflict with each other as section 155 deals with methods of impeaching the credit of a
witness in different way. Sections 147, 149, 154, 158 and 163 deal with impeaching the
credit of a witness by cross-examination. Section 164 deals with modes of evidence of
impeaching the credit of a witness other than by cross-examination in the witness stand
and has to be exercised immediately after examination-in-chief.
• According to section 164(1)(a) provides that the credit of a witness may be
impeached by the evidence of persons who from their knowledge of the witness
believe the witness to be untrustworthy of credit.
In order to impeach the character of a witness for veracity, witness may be called to
prove that his general reputation is such that they would not believe him upon his
52

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oath. The evidence that is to be adduced to discredit the witness should be confined to
general reputation for truthfulness or general moral character and should not be given
of particular acts of falsehood or immorality or any wrongdoing.53 “The impeaching
witness cannot in direct examination give particular instances of falsehood or
dishonest since no man is supposed to come prepared to defend all the acts of life.
But in cross-examination he may be asked as to his means of knowledge of other
witnesses, his feeling of hostility towards him or whether in spite of bad character in
other respects, the impeaching witness has not preserved his reputation for truth; and
the answer to these questions cannot be contradicted. It has been said that the
impeaching witness should come from the locality of the other, and not a stranger
sent expressly to learn the latter’s reputation. The impeaching witness cannot, of
course, be asked his opinion whether witness is in fact speaking the truth about the
issue before the court.”54
• Section 164(1)(b) states that the credit of a witness may be impeached by proof that
the witness has been bribed or has accepted the offer of a bribe or has received any
other corrupt inducement to give evidence. The credit of a witness may be impeached
on the ground that his evidence was obtained by corrupt inducement.
• According to section 164(1) (c) the witness may be impeached by proof of former
statement inconsistent with any part of his evidence which is liable to be
contradicted. The mode of using such former statement for the purpose of
contradicting witness is prescribed in section 154. This part deals with previous
inconsistent statements of a witness whose evidence is sought to be discredited under
this section. The previous statements may be of several types, e.g. statements made to
the police officers under the Criminal Procedure Act, extrajudicial statements etc.
• According to section 164(1) (d) when a man is prosecuted for rape or attempt to
commit rape evidence can be given to impeach the credit of the prosecutrix about her
immoral character. But it is not permissible to prove specific immoral character with
the accused person or with others and she may decline to answer such questions but if
she answers them in the negative, further evidence can be adduced to contradict her. 55
The words “general immoral character” presupposes that evidence showing general
reputation of the woman as that of a prostitute or that she had general reputation of
going about and committing immoral acts with a number of men is admissible.
Halsbury56 states: “On charges of rape, attempted rape, assault with intent to rape and
indecent assault, the character of the complainant is relevant to the issue of consent,
and she may therefore be cross-examined (1) to show that she is of general bad
character for example that she is a common prostitute, or is of loose morals, or is in
the habit of having intercourse on first acquaintance whether for money or not, or (2)
that she has had intercourse with the defendant on previous occasions, and witnesses
may be called to give evidence in support of such imputations. She may also be
cross-examined as to acts of intercourse with other men but since this goes to the
credibility rather than to the issue, the defendant is bound by her answers and if such
acts are denied, evidence may not be called to prove them.
53
Ibid.
54
Phipson on Evidence, 15th Edn., (2002) p. 265 (para. 11-14).
55
Tailor on Evidence 8th Edn., section 363.
56
Halsbury’s Laws of England, 4th Edn., Vol. 11, para 374, page 274.

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Hostile Witnesses
A witness is said to be hostile when he tries to injure a party’s case by suppressing the
truth. In Mbewa & Bros v. R. (1971) HCD n. 310, the appellant believed that his own
witness was telling lies thus discarded him. On appeal the court said that section 154
should have been applied to draw the witness’ attention to the part which contradicts it.
The court further said that mere giving unfavourable evidence is not enough to find
hostility because he might be telling the truth which is not in interest of party calling him.
The procedure to be applied before a witness can be declared hostile are provided in the
case of R. v. Lugimbana (1971) HCD n. 429, where it was stated that:
• Previous statements made by the witness should be produced for comparison.
• An application for impeaching the credit of a witness should be done during
examination-in-chief if it is the witness of the party calling him and during cross-
examination if it is for the other party.
• If the witness suppresses the truth during cross-examination, the party should apply
from the court for another examination-in-chief.
In the case of Mbatia Luadiba v. R. (1938) E.A.C.A. the court stated that where the
party impeaching the credibility of a witness succeeds to show the existence and
substantial inconsistence which are unexplained, the effect is to render the witness
unworthy of belief and not to make what he said formerly as evidence at the trial.
The difference between section 163 and 164(1) is that section 163 is not restricted to
hostile witnesses, it is sufficiently wide enough to include person who give inconsistence
accounts.
Rules Relating to Declaration to Hostility
• The court must ensure that a witness declared hostile is given an opportunity to
explain the inconsistence between his statement and the evidence given in court. If
succeed to explain, the former statement seeking to impeach the witness shall not
hold so much.
• It is a fatal irregularity to treat a statement of a hostile witness and to rely on it to
convict.
• A hostile witness is not reliable and his testimony has no weight and such evidence
cannot be used to corroborate other evidence.
• Whether or not a witness has in fact turned hostile it is for the court to decide on the
application of a party.
According to section 164(2) where a person is called under section 164(1) (a) declares
another person to be unworthy of belief, he is not supposed to give his reasons for his
belief during examination-in-chief, however, he may be asked to give his reasons during
cross-examination. The answers he gives cannot be contradicted although he may be
charged with giving false evidence if the answers he gave are false.

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10.2.16 Evidence to Corroborate Evidence of Relevant Facts

Section 165 states that the question tending to corroborate fact can be put in respect of
circumstances which the witness observed at or near the time or place at which such
relevant fact occurred. However, this section impose a condition that such questions can
be put only when the court is of the opinion that the circumstances, if proved would
corroborate the testimony of the witness as to the relevant fact which he testifies. E.g. A
an accomplice gives an account of a robbery in which he took part. He described various
incidents unconnected with the robbery which occurred on his way to and from the place
where it was committed. Independent evidence of these facts may be given in order to
corroborate his evidence as to the robbery itself.
When the court is inclined to reject the evidence of a witness to be false but has some
doubts it may find it necessary to have corroboration and in order to enable it to act on
that evidence, it may seek corroboration from other independent evidence or
circumstantial evidence of similar facts though not admissible to prove a main fact, may
be received for purpose of corroboration. Corroboration, in order to be of any value must
be on material particulars and the facts relied on for corroboration must be established by
reliable and independent evidence. These facts must be such as to lend assurance to the
crucial issue which is in question.57
10.2.17 Former Statements May be Proved to Corroborate later

Testimony
According to section 166, in order to corroborate the testimony of a witness in respect of
a fact his former statement which was made at or about when the fact took place can be
given in evidence or the former statement given before any authority legally competent to
investigate the fact may also be given and proved. According to this section two classes
of former statements may be proved in order to corroborate the evidence of a witness;
• Former statement made by such witness relating to the same fact at or about the time
when the fact took place.
• Former statement made before any authority legal competent to investigate the fact.
Generally, the statement made immediately on the occurrence of an event certain truth
for not time has elapsed for concoctions to creep in. similarly, statements solemnly made
in the presence of a legally competent authority bear the impression of truth. Statements
like these are therefore a legitimate means of corroboration. They support the credibility
of the person whose evidence is corroborated.58
10.2.18 What Matters may be proved in Connection with Proved
Statements Relevant under sections 34 or 35
Section 167 submits statements made under sections 34 and 35 (which permit the putting
I of statements oral or written or statements made in a judicial proceeding by a person
57
58

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who cannot be examined as a witness) to the contradiction and corroboration in the same
way as if those statements were made by the witness in the witness stand. “The object of
this section is to expose statements to every possible means of contradiction or
corroboration in the same manner as those of a witness before the court under cross-
examination, the reason being that statements admissible under sections 32 and 33
[sections 34 and 35 TEA] are exceptional cases and it is but just and reasonable that such
statements should as far as possible be subject to the various modes of attacking or
corroborating them. No sanctity attached to the statements simply because a person is
dead; his credibility may be impeached or confirmed in the same manner as that of a
living witness.”59
10.3 Refreshing Memory and Production of Documents

10.3.1. Refreshing Memory
According to section 168 the witness is allowed to refresh his memory by reference to an
earlier writing by himself provided that:
• It was made at the time of the transaction,
• Immediately after the transaction to which the court considers that the transaction
was still fresh in his memory.
Taylor60 observes, “A witness is sometimes permitted to refresh and assist his memory by
the use of written instrument, memorandum or entries in a book. But this course—except
in the case of scientific witness referring to professional books as the foundation of their
opinion—can only be adopted where the writing has been made or its accuracy
recognised at the time of the fact in question, or at furthest, so recently afterwards, as to
render it probable that the memory of the witness had not then become defective.”
The witness under section 168(2) may use writings made by any other person provided
that the witness had an opportunity to read it and at that time knew such writing to be
correct. The words “any writing” include also printed matters. Such writing may be
letters, police diaries, account books and post-mortem report.
10.3.2 Use of Copy of Document to Refresh Memory
According to section 169, a witness may use copy of any writing to refresh his memory.
However, he may use such copy only where there are sufficient reasons for non
production of the original, and with the permission of the court. This section does not
require that the copy should have been made by the witness himself.
As the use of copies of the original writing, Phipson61 observed;
“a) Where the copy was made or verified by the witness while the facts were fresh in his
recollection, it may be used, on the footing of a duplicate or a quas-original. Thus a
sale was allowed to be proved by a clerk who refreshed his memory from a ledger,
copied under his supervision from a waste-book kept by himelf; 62 and a surveyor had
been allowed to refer to a printed copy of a written report from rough note taken by
59
Stephen, Digest, Art. 135.
60
Taylor on Evidence, section 1406.
61
Phipson on Evidence, 15th Edn., (2000), para 11-47, page 269-270.
62
Burton v. Plummer (1839) 2 A & E 341.

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him at the time. 63 A police officer was allowed in a trial in 1975 to refer to a
statement made for committal proceedings from detailed notes kept during
observation in 1972; the defendant had absconded and the police officer’s note book
lost.64
b) Where the original is in existence and the witness has no recollection of the facts
otherwise than from it, a copy may not be used and the original must be used.65
c) Where the original has been lost or destroyed, a copy porved to be correct either by
the witness or some third person may be used. Thus a journalist has been allowed to
refresh his memory from a copy of the paper 14 years old, although he had no
recollection of the facts, proof being given by the editor that the manuscript was lost
and that the paper was a copy of it, and proof being given by the witness, that he had
no doubt the facts stated therein were true.66
d) Where the copy is either not proved to be correct or consists of an imperfect extract
made by the witness or has been revised and transcribed with the help of the solicitor
to the case it cannot be used to refresh memory, whether the original is in existence or
not.”
10.3.3 Expert may refresh his Memory
Section 170 allows expert to use professional treaties to refresh his memory.
10.3.4 Testimony to Facts Stated in Document Mentioned in Sections
168 or 169
According to section 171, a witness may refresh his memory by a document even though
he has no specific recollection of the facts themselves, but he must be sure that the facts
were correctly recorded in the document.
Markby67 observes that: “A, a grocer, sues B for the price of goods sold sometimes
previously in small quantities ona great many different occasions, in fact, on an ordinary
running account. The shop-man is called who says that though he knows B to be a
customer, he has not recollection of the particular transactions, but they are all contained
in a book which he holds in his hand. The book is not admissible in evidence, but if the
conditions as to the writing and so forth of the entries in the book as stated in section 159,
[section 168 TEA] be satisfied, then under section 160 [section 171 TEA] the witness
may look at the book if he is prepared to state upon oath that the entries are correct, he
may read them out of the book.”
The document need not to have been made by the witness personally, but if it was not
made by him it must have been checked by him while the facts were fresh in his
memory.68
• Comparison between sections 168/169 and 171
Sections 168/169 Section 171
63
Horne v. Mackenzie (1834) 6 C & F. 628.
64
R. v. Cheng (1976) Cr. App. R. 20 C.A.
65
Doe v. Perkins (1790) 3 TR 749.
66
Topham v. McGregor (1844) 1 C & K 320.
67
Markby on Evidence p. 111.
68
Halsbury, 4th Edn., Vol. 17, para 274, page 191.

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1. The witness refreshes his 1. The memory

memory by looking into document and of the witness is not refreshed with the
gives evidence in the ordinary way. help of the document.
2. The document is not 2. The
tendered in evidence. So the witness’ document is tendered in evidence. So the
memory or recollection is the evidence, document is the evidence of facts
after looking into the document. The contained therein and which were
mere handing over of a document to a spoken to by the witness. The document
witness for the purpose of refreshing his would be tendered only when the
memory does not make the document a witness states that (1) he had no
piece of evidence in the case. recollection of the facts stated in the
document and (2) that he is sure that the
facts were correctly recorded in the
document. Even if he omits to say in
evidence that he had no recollection of
facts and that he is sure that the facts
were correctly recorded, it would not
make the document inadmissible,
provided he states on oath that the facts
were correctly stated in the document.
3. The witness can even refer 3. The copy of
to a copy of the document with the the document cannot be tendered.
permission of the court.
4. There is no evidential value 4. There is
of the document. some evidentiary value because of its
being tendered in evidence.69
10.3.5 Right of Adverse Party as to Writing used to refresh Memory
According to section 171, wherever a witness is testifying to the document or any writing
according to the provisions of sections 168 and 169 if the opposite party requires the
document, it must be produced for the inspection of the opposite party. This is the right
given to the opposite party and if the opposite party wants to cross-examine the witness
with reference to those documents he can do so. On the right to inspection and cross-
examination by opposite party, Halsbury70 it is stated that “Production of the document
at the trial:-Where a witness uses a document in the witness box to refresh his memory,
the document may be seen by the opposite party. If only part of the document is used
then all of the document which is relevant to the fact in issue must be made to the
opposite party. Thus document should not be fastened in such a way that other parts,
beside those referred to by the witness cannot be read.”
69
70 th
4 Edn., Vol. 17, para 275, page 192.

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The other party may not see the document at all where the witness is unable to refresh his
memory even with its assistance or where it is used for the purpose of enabling a witness
to identify handwriting71, except for the purpose of examination as to the handwriting.72
10.3.6 Production of Documents
Section 173 deals with the production of documents when summoned by the court. Once
the witness is summoned to produce the document he has no option but to produce it i.e.
it is mandatory to produce the document. Even if he has any objection, he is bound to
produce it and while producing he can raise his objection. When any objection for its
production or admissibility is raised, the court has to decide about the validity of the
objection.
According to section 173(2) when a document is produced with objection as to its
production or admissibility and such document refers to section 132 (privilege relating to
official records) the court has no power to inspect it.
When a witness si summoned to produce a document which is in his possession or power
he must bring it to court notwithstanding any objection that he may have with regard to
its production or admissibility.
If the document is to be translated, the translator may be required by the court to keep the
contents secret. According to section 173(3) if the translator disobeys the court order, he
shall be held to commit the offence under section 96 of the penal Code (abuse of office).
10.3.7 Giving as Evidence of Document called for and Produced on
Notice
According to section 174 when a party issues a notice to the other party to produce a
document which is in his possession or power, the other party has to produce it. Once it is
produced and inspected by the party calling for its production, he is bound to produce it
as evidence if the opposite party requires him to do so. This section is applicable only if
three conditions are met namely;
1. The document should be required by the party to be produced in evidence.
2. The party producing the document should require the party calling it to put in
evidence.
3. It should be inspected by the party who had given notice.
Tylor73 observes; “The production of papers, upon notice does not make them evidence in
the cause unless the party calling for them inspects them, so as to become acquainted
with their contents; in which case he is obliged to use them as his evidence, at least if
they be in any way material to the issue. The rule for this rule is, that it would give an
unconscionable advantage to a party to enable him to pry into the affairs of his adversary,
without at the same time subjecting him to the risk of making whatever he inspects
evidence for both parties.”
71
Sinclair v. Stevenson (1824) 1 C & P 582.
72
Holland v. Reeves (1835) 7 C & P 36.
73
12th Edn., section 1817, page 1126.

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10.3.8 Using as Evidence of Document Production of which was Refused

Section 175 provides that where a party having a document in his possession refuses to
produce it when called to do so at the hearing, he cannot later give such document in
evidence without the consent of the other party or by the order of the court. E.g. A sues B
on an agreement and gives B notice to produce it. At the trial A calls for the document
and B refuses to produce it. A gives secondary evidence of its contents. B seeks to
produce the document itself to contradict the secondary evidence given by A, or in order
to show that the agreement is not stamped. He cannot do so.
Wigmore74 observes; “This section is in one sense a proper penalty for unfair tactics, but
the original refusal may also be regarded as a judicial admission, in advance, of the
correctness of the first party’s evidence of its existence.”
According to section 98, the court shall presume that every document called for and not
produced after notice to produce, was attested, stamped and executed in the manner
required by law. This section is based on the principle that no one shall be allowed to
take advantage of his own wrong, thus once the presumption under section 98 is drawn, it
cannot be easily rebutted by the production of the document at a later stage, except as
under section 175 with the consent of the other party or by the order of the court.
10.3.9 Power of Court to put Question or Order Production
Section 176 is aimed at giving the court extensive power possible for the purpose of
getting the truth. The effect of this section is that in order to get to the bottom of the
matter before it the court will be able to look at and enquire into every fact whatever.
Each party in a case is interested in setting up his own case and demolishing the one set
up by his adversary. There is danger in some case that the whole truth may not come out
before the court. The court in order to discover or to obtain proper proof of relevant facts
may exercise very wide powers indeed; but they all pivot upon the ascertainment of
relevant facts. He may approach the case from any point of view and is not tied down to
the ruts marked out by the parties. He can ask (1) any question he pleases, (2) in any
form, (3) at any time, (4) of any witness, (5) or of the parties, (6) about any fact relevant
or irrelevant. No part is entitled to object to any such question or order, or to cross-
examine the witness without the leave of the court. 75
However, the powers of the court are subjected to the following exceptions where the
witness is not obliged to answer:
• Any question or to produce any document contrary to Chapter V Part II of the
Evidence Act.
• Any question contrary to section 158 or 159.
• The court shall not dispense with primary evidence of any document except of
provided by the Evidence Act.
Best76 observed: “The judge has a certain latitude allowed him with respect to the rules
of forensic proof. He may ask any question in any form, and at any stage of the cause and
74
Wigmore on Evidence, section 1210, Vol. 3, p. 381.
75
Chandrachul, Y. V. J and Kuppuswani, A.J., Rantalal & Dhirjlal The Law of Evidence,
20th Edn., Wadhwa Nagpur, New Delhi, India.
76
Best on Evidence, section 86, p. 70.

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to a certain extent even allow parties or their advocates to do so. This, however, does not
mean that he can receive illegal evidence at pleasure; for if such be left to the jury, a new
trial may be granted even though the evidence were extracted by questions put from the
Bench, but it is a power necessary to present justice being defeated by technicality to
secure indicative and it should be exercised with discretion…Discretion is a science or
understand to discern between falsity and truth, between wrong and right, between
shadow and substances, between equity and colourable glosses and pretences, and not to
do according to their wills and private affections.”
The court has power to call a witness not called by either the prosecution or the defense
without their consent if it considers that it is necessary for the interest of justice to do so.
(See also section 195 CPA).
When asking questions the court is supposed to e very careful so as not to identify itself
with any party (not to create prejudice to the defense or prosecution). The use of the word
‘any’ in section 176 gives the court wide powers which it can exercise at any time
whenever it deems necessary to elicit the truth. The court is supposed to actively
participate in the trial and to elicit necessary materials from witnesses at the appropriate
context which it feels necessary for reaching the correct conclusion even during cross-
examination especial when the witness is in confusion. In exercising the powers under
section 176, the court should also be very careful not to put questions to the witness for
the purpose of filling up the lacunae during examination or cross-examination of the
witnesses.
The court can exercise the power conferred to it under section 176 at any time during the
proceedings. Generally the court should not ask questions after the closure of the defence
case, but as Halsbury77 stated: “He should not call such a witness after the evidence for
the defense is closed, except in a matter ‘arising ex improviso’ which no human ingenuity
could foresee.”78
The court for the interest of justice is empowered under this section to examine any one
as a court witness. “If there is any person whom neither parties to an action chooses to
call as a witness, and the judge thinks that the person is able to elucidate the truth, the
judge, in my opinion, is entitle to call him.”79
When the court orders the production it should do so ‘in order to discover or to obtain
proper proof of relevant facts. When ordering the production of such document the court
should be certain that it is necessary for the interest of justice.
10.3.10 Power of Assessors to put Questions
Section 177 gives power to assessors (where the trial is tried by assessors) to put
questions to the witnesses which would have been put by the court. The assessors will put
such questions with the leave of the court. According to section 265 CPA; trial by the
High Court are held with the aid of assessors.
10.3.11 Improper Admission and Rejection of Evidence
According to section 178, no new trial or reversal of any decision on the ground of:
77
Halsbury 4th Edn., Vol. 11 para 296, page 172.
78
R. v. Harris (1927) 2 KB 587.
79
Per Lord Esher in Coulson v. Disborough (1894) 2 QB 316 at 318.

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• Improper admission of evidence if there is sufficient evidence to justify the decision

independently of the evidence objected to and admitted;
• Improper rejection if the decision could not be varied if the rejected evidence had
been received.
The object of this section is that the court on appeal or revision should not disturb a
decision on the ground of improper admission or rejection of evidence if in spite of such
evidence; there are sufficient materials in the case to justify the decision. The main
function of the court is to do substantial justice between parties and see if there is
sufficient evidence to justify its conclusion. If the evidence after omitting such portion of
the evidence which should not have been omitted is sufficient to decide a case, then
according to this section such decision shall not be reversed nor shall a new trial
ordered.80
11 CORROBORATION ON WITNESS
11.1 Introduction
Corroboration means independent evidence which implicate the accused in some material
particular not only that the crime has been committed but it is the accused who
committed it. Corroboration generally, is the independent evidence in addition to the one
which had been tendered by the witness, whether oral or circumstantial which tend to
support material evidence previously adduced.
Under the law of evidence, corroboration is a matter of law and not of facts.
Corroboration can be required by the law or by practice—(practice by the judge for so a
long time that it has become part and parcel of the law). Thus under the law of evidence
corroboration is divided into: corroboration as required by the law (statutory
requirement) and corroboration as a rule of practice.
11.2 Statutory Requirement of Corroboration

11.2.1 Evidence of a Child of Tender Years
The law requires that the evidence of a child of tender year should be corroborated.
However under section 127(30 where the court is satisfied that the child is telling nothing
but the truth, and only after warning itself on the danger of convicting on uncorroborated
evidence of a child of tender years, it may proceed to convict.
11.2.2 Confession of Co-accused
According to section 33(2) a confession by a co-accused cannot for the basis of a
conviction see the case of Pascal Kitigwa.
80

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11.2. 3 Evidence on a Charge of Perjury

According to section 105 of the Penal Code, where a person is charged with perjury or
subordination of perjury the court cannot convict him solely on the evidence of a single
witness.
11.2.4 Seditious Offences
According to section 34 of the Newspaper Act, Cap. 299, R.E. 2002, the court is not
allowed to convict any person charged with seditious offence upon the evidence of a
single witness.
10.3 Corroboration as Required in Practice

11.3.1 Evidence of a Single Witness
Generally, under section 143, there is no fixed number of witnesses required to prove the
fact. However, as has been practiced by courts, it is hard to find conviction on the
testimony of a single witness, unless the court warns itself on the danger of convicting
without corroboration. In the case of R. v. Chamtigiti (1970) HCD n. 343, the court said
that “the learned trial magistrate did not warn himself of the danger of convicting upon
Zainabu’s evidence however credible she may have appeared to be. A tougher test than
credibility had to be applied before her evidence could be the basis for conviction.
Although subject to certain exceptions, a fact may be proved by the testimony of a single
witness, this does not lessen the need for testing with greatest care the evidence of such
witness respecting the identification especially when it is known that the conditions
favouring identification are difficult.”
11.3.2 Dying Declaration
Dying declaration under section 34 is in the category of the testimony of a single witness
hence the court will require corroboration. In the case of R. v. Mohamed Shedaffa and
three others [1983] TLR 95, the court said that it is possible for a conviction to proceed
upon evidence consisting of a dying declaration only, although it is a rule of practice that
a dying declaration requires corroboration before it can be acted upon.
11.3.3 Evidence of Police Decoys
Police decoys or traps are not accomplices of the accused, however, in practice such
evidence should be treated with great care as was said in the case of Mohamed Katindi
and another v. R. [1986] TLR 134 that although the Regional Crime Officer was not an
accomplice, he was a decoy who was not a disinterested witness and his evidence had to
be examined closely.
11.3.4 Sexual Offences
Under section 127(7) generally, the court may convict on evidence of a single witness, be
that of the child of tender years or of the victim of the sexual offence. However, the court
has to asses the credibility of the witness (child of tender years or victim of sexual
offence). The court has to satisfy itself that the witness is telling nothing but the truth, the
court has to record its reasons for the decision. According to this section the court will
require corroboration where it finds that it is hard to believe the witness after assessing
his/her credibility.

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11.3.5. Retracted/Repudiated Confession

As a matter of practice, courts do require where the accused at the trial retract or
repudiate his confession either made before the police officer or before the justice of
peace. In the case of Hamis Athuman and two others v. R. [1993] TLR 110, the court
said that even though the appellants repudiated or retracted their confession during the
trial, the court is entitled to convict them if it finds that those confessions were true. Thus
where after analysing the repudiated/retracted confession the court is convinced that the
confession is true, it may proceed to convict.
12. RELEVANCY OF OPINION OF THIRD PERSON
12.1 Opinion of Experts

According to section 47, the opinion of expert is relevant on point of: foreign law,
science, art and identity of handwriting and finger impression. E.g.
a) The question is, whether the death of A was caused by poison. The opinion of experts
as the symptoms by the poison by which A is supposed to have died, are relevant.
b) The question is, whether A, at the time of doing a certain act was by reason of
unsoundness of mind, incapable of knowing the nature of the act or that he was doing
what was either wrong or contrary to law. The opinion of experts upon the question
whether the symptoms exhibited by A commonly show unsoundness of mind, and
whether such unsoundness of mind usually renders person incapable of knowing the
nature of the acts which they do, or of knowing that what they do is either wrong or
contrary to law, are relevant.
c) The question is, whether a certain document was written by A. Another document is
produced which is proved or admitted to have been written by A. The opinion of
experts on the question whether the two documents were written by the same person
or by different persons, are relevant.
It is “a general rule that the opinion of witnesses possessing peculiar skills is admissible,
whenever the subject matter of enquiry is such that inexperience persons are unlikely to
prove capable of forming a correct judgment upon it without such assistance. In other
words, this is so when it is so far partakes of the character of a science or art as to require
a course of previous habit or study to obtain a competent knowledge of its nature.”81
An expert witness is one who has devoted time and study to a special branch of learning,
and this is special skilled on those points on which he is asked to state his opinion. His
81
Tylor, 12th Edn., section 1418, p. 902.

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evidence on such points is admissible to enable the tribunal to come to a satisfactory

conclusion. Phipson82 states: “Even at common law the opinion of skilled witnesses are
admissible whenever the subject is upon which competency to form an opinion can only
be acquired by a course of special study or experience…” “Though the expert must be
“skilled” by special study or experience, the fact that he has not acquired his knowledge
professionally goes merely to weight and not to admissibility…Equally, one can acquire
expert knowledge in particular sphere through repeated contact with it in the course of
one’s work, notwithstanding that the expertise is derived from experience and not from
formal training.83
The word “art” as used in section 47 is not confined in fine art, and in the case of
Manishanker v. Metha (1946) 13 E.A.C.A 115, it was held that expert evidence is
admissible on the subject of the ordinary methods of trading in piece of goods, this being
a highly technical matter which could not be expected to be within the knowledge of the
court.
The court is not bound to accept the expert opinion if it finds good reason for not doing
so. In the case of Hilda Abel v. R [1983] TLR 246 the court said that courts are not
bound to accept medical expert’s evidence if there are good reasons for not doing so.
As seen above, experts include those person who have acquired their expertise through
experience. In the case of Gatheru s/o Njagwara v. R (1954) 21 E.A.C.A the court ruled
as follows:
“This court has on several occasions said that when a trial court has to form an
opinion upon the question whether a home made gun, or part thereof, is a lethal
weapon it must have the assistance of expert opinion. We think that special skill
is not confined to knowledge acquired academically but would also include skill
acquired by practical experience…It may well be that in the present
circumstances in Kenya, a police officer employed on operational or
investigation work acquires a sufficient particular knowledge to qualify him to
speak as an expert…but even so as his competency as an expert should in all
cases be shown before his testimony is properly admissible. In the instant case,
the officer in question merely described himself as an inspector of police attached
to the C.I.D Nanyuki. There was no evidence as to how long he had performed
such duties or whether he had ever seen or examined any home made weapon
other than those seized in the course of the operation which led to the appellant
arrest.”
In the case of Kimazi s/o Mihindi and others v. R (1955) 22 E.A.C.A 472, the police
officer stated in the course of his evidence that he has one and a half years’ experience of
home made weapons and had seen about a hundred such guns. The court held this
evidence to be that of an expert.
In the case of Mohamed Ahmed v. R [1957] E.A 253 the court said that the rule that
require the competency of an expert to be proved before giving evidence does not include
expert who had qualification to give evidence as expert. In this case, the evidence of the
district health inspector and a superintendent of public works as to whether the building
was so unsafe as to constitute a nuisance was admitted, the court said that prima facie by
82
Phipson on Evidence, 15th Edn., (2002), p. 921, para 37-04.
83
Phipson on Evidence, 15th Edn., (2002), p. 962, para 37-46.

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their callings these officers were qualified to give such evidence. The court went further
to say:
“That however, is a rule of practice and the omission to observe it will not in all
cases render the evidence inadmissible; particularly when, as in the instant case,
the witness’ occupation imparts prima facie qualification and his capacity to give
expert evidence is not challenged.”
12.2 Facts Bearing upon Opinions of Experts

According to section 48, where the opinion of the expert is relevant, any other fact which
supports or is inconsistent with the opinion though not otherwise relevant, is relevant.
E.g.
a) The question is, whether A was poisoned by a certain poison. The fact that other
persons, who were poisoned by that poison, exhibited certain symptoms which
experts confirm or deny to be the symptoms of that poison, is relevant.
b) The question is, whether an obstruction to a harbour is caused by certain sea-wall.
The fact that other harbour similarly situated in other respects, but where there was
no such sea-wall, began to be obstructed at about the same time, is relevant.
The principle in this section is contained in section 13 of the Evidence Act which state
that facts not otherwise relevant are relevant provided they are inconsistent with any fact
in issue or relevant fact or if by themselves or in connection with other facts they make
the existence or non-existence of any fact in issue or relevant fact highly probable or
improbable.
12.3 When Opinion as the Handwriting relevant

According to section 49, the handwriting of a person may be proved in the following
way:
• By the evidence of the writer himself.
• By the evidence of a person who has seen the person whose handwriting is in
question write.
• By the evidence of a person who is acquainted with such handwriting either by
receiving letters purporting to be written by the person in answer to documents
written by the witness or under his authority and addressed to that person, or when in
the ordinary course of business documents purporting to be written by that person
have been habitually submitted to him.
• By the evidence of an expert in comparing handwriting.
• By the court comparing the documents in question and any others proved to the
satisfaction of the court to be genuine.
• The court also direct any person present in court to write any words or figures for the
purpose of enabling the court to compare the words or figures so written with any
words alleged to have been written by such person.

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Halsbury84 observed the following: a person’s handwriting may be proved by the opinion
of witnesses who are acquainted with it. The knowledge necessary for this purpose may
have been acquired by the witness at any time, 85having (1) seen the party write, or (2)
received communications purporting to come from him, 86 in answer to those addressed to
him by the witness, or (3) observed documents purporting to be in party’s handwriting in
the ordinary course of business.87 Knowledge, however, acquired before or during the
trial by a non-expert witness, for the express purpose of qualifying him to prove the
party’s handwriting at the trial will not suffice to make the evidence admissible. 88
Testimony thus admitted is considered to be primary and not secondary in its nature and
so will not be excluded, even though better evidence of the handwriting in question is
available.”
It is provided in this section (section 49) that a document must be signed by a person.
Signed means a signature of a person is a normal sense, the way the person offices his
name with intent that it should be treated as his signature.
Furthermore, this section says that when the court has to form an opinion as to the
handwriting of a person, the opinion of a person who is acquainted with such handwriting
is relevant, however before the court can admit such opinion it must be proved that the
witness is acquainted with handwriting of such person.
12.4 Opinion as to Existence of Right or Custom

Section 50 provides that opinion as to the existence of a general custom or right when the
court has to form its opinion as to its existence are relevant. Under section 50(2) the
expression “general custom or right” includes customs and rights common to any
considerable class of persons. E.g. the rights of the village of a particular village to use
the water of a particular well is a general right within the meaning of section 50.
Opinions of persons who are in a position to know of the existence of a custom or usage
in their locality are admissible.
According to the Evidence Act, customary may be proved under sections 15, 34(d), 45
and 50. However, section 34(d) deals with the opinion of person as to the existence of
public right or custom or matters of public or general interest. The difference between
section 50 and 34(d) is that, under section 34(d) statements of opinion must be made by a
person who is dead or cannot be found whereas section 50 does not require so, as it is the
opinion of a living person who would state his opinion before the court. Section 50 deals
with general custom or right while section 34(d) deals with public right or custom.
Section 15 deals with all rights and customs, public or private and refers to specific facts
which may be given in evidence, section 50 deals with oral evidence given in court by
the person expressing the opinion.
Custom is an unwritten law established by usage. Custom should be distinguished from
usage. Usage is a fact and custom is a law. There can be usage without custom but not
custom without usage. The word general is an equivalent of the term public. Under
84
Halsbury’s Laws of England, 4th Edn., Vol. 17, page 66, para 89.
85
There must have been sufficient opportunity to acquire knowledge of the handwriting in order to make
the evidence admissible.
86
Harrington v. Fry (1824) 1 C & P 289.
87
Doe d Mudd v. Suckermore (1836) 5 A & F 703 at 730, 731.
88
R. v. Crouch (1850) 4 Cox CC 163.

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section 50(2) it is stated that the expression general custom or right includes customs or
rights common to any considerable class of persons. 89 The expression indicates that
private rights are excluded from the operation of the section. Such rights must be proved
by facts such as facts of ownership.
The expression “likely to know” in section 50(1) imply that personal knowledge about
the fact is not necessary, however such a witness should posses sufficient experience
which would go to suggest that he is likely to know of the existence of the custom sought
to be proved by him. 90
12.5 Opinion as to Usage, Tenets etc.

Section 51 gives certain kings of matters which can be proved by the opinion of persons
having special means of knowledge when the court has to form an opinion about them.
These matters are:
a) Usage and tenets of any body of men (section 51(a)).
b) Usage and tenets of a family (section 51(a)).
c) Constitution and government of any religious or charitable foundation (section
51(b).
d) Meaning of words or terms used in particular districts (section 51(c)).
e) Meaning and words or terms used by particular class of people (51(c)).
“Special means of knowledge” as used in this section means that the person must have
the opportunities for acquiring knowledge of usage or custom and that he had acquired
the necessary knowledge. However, it is not necessary that the person giving evidence
should engage himself in particular business, and that he himself should be a member of
a particular class of people, it is sufficient that he has special means of knowledge
regarding the meaning of the words or terms used in a particular district or a particular
class of people.91
When the court has to find the meaning of a word, it may consult a dictionary in order to
dispense justice. Usages as used in this section include usage of trade, agriculture, and
mercantile usage. Usages of a family may include for example the custom of
primogeniture, inheritance or any peculiar course of descent. Tenets include any opinion,
principle, dogma or doctrine which is held or maintained by a body of men, this apply
also to religion, politics, science, etc.
12.6. Opinion on Relationship

Section 52 provides that when the court has to form an opinion as to relationship of one
person to another the opinion expressed by conduct by any person as a member of the
family or otherwise has special means of knowledge on the subject is relevant as to the
existence of such relationship. To make the evidence of a witness relevant under this
section two things must be fulfilled:
89
90
Ibid.
91
Ibid.

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• The witness must have special means of knowledge with regard to the existence of
the disputed relationship either as a member of a family or otherwise.
• The witness must depose to his own conduct towards the person whose relationship is
in dispute.
The opinion may be of a member of the family or an outsider, but he must have special
means of knowledge. E.g.
a) The question is, whether A and B were married. The fact that they were usually
received and treated by friends as husband and wife, is relevant.
b) The question is, whether A was the legitimate son of B. the fact that A was
always treated as such by members of the family, is relevant.
The difference between section 52 and section 34(f) is that, the statement is admissible
under section 34(f) where the witness has heard the existence of relationship from
persons who has special means of knowledge and the statements were made before the
dispute arose. Section 52 provides that where the witness gives his opinion as to the
relationship even though after the dispute had arisen, is admissible provided that he is a
member of the family or otherwise and has a special means of knowledge and the opinion
is expressed by conduct. Under section 52 if the statement is made by a person who has
no special means of knowledge are not admissible, while such statement is admissible
under section 34(f) provided that the witness states that he had the information from a
deceased person long before the dispute.
The proviso to section 52 provides that, that opinion on relationship cannot be sufficient
to prove marriage in any proceedings, whether civil or matrimonial or criminal under the
Law of Marriage Act (e.g. bigamy, adultery etc.).
12.7 Ground of Opinion

Section 53 provides that where the opinion of any living person is relevant, then, the
grounds on which such opinion is based are also relevant.
Where the opinion of an expert is receivable, the grounds or reasoning upon which such
opinion is based may also be inquired into. Opinion is no evidence, unless the reason is
assigned for such opinion. The correctness of the opinion can be estimated better in many
instances when the reasons upon which it is based are known. If the reasons are frivolous
or inconclusive the opinion is worth nothing.92
E.g. an expert may give an account of experiments performed by him for the purpose of
forming his opinion.
92

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13. RELEVANCY OF CHARACTER
13.1 Definition of Character

According to section 57 character include both reputation and disposition. In sections 54
and 56 evidence may be given only of general reputation and general disposition and not
of particular acts by which reputation or disposition were shown.
Character is a combination of the peculiar qualities impressed by nature or by habit of the
person which distinguish him from others; these constitute his real character. The
qualities which he is supposed to possess constitute his estimated character or
reputation.93
Character is what a person actually is; whereas reputation is what neighbours would say
what he is. In other words reputation is what is reputed. Thus reputation involves certain
amount of hearsay. As an exception to the hearsay rule, evidence of reputation can be
given under specific circumstances mentioned in these sections (sections 54 and 56).
Reputation (based on hearsay) being the community’s opinion is distinguished from mere
rumor in two respect. On the one hand reputation implies the definite and final formation
of opinion by the community while rumor implies merely a report that is not yet finally
credited. On the other hand rumor is usually thought of as signifying a particular act or
occurrence, while a reputation is predicted upon a general trait of character; a man’s
reputation for example may declare him honest, and yet to day rumor may have
circulated that this reputed honest man had defaulted yesterday in his accounts.94
13.2 Character in Civil Cases

Section 54(1) provides that in civil cases evidence of a character of any part to the suit, to
prove the probability or improbability of any conduct imputed is irrelevant.
“In respect of character of a party, two distinctions must be drawn, namely, between the
case when the character is in issue or not in issue, and when the cause in civil or criminal.
When a party’s general character is itself in issue, whether in civil or criminal
proceedings proof must necessarily be received of what that general character is, or is
not. But when general character is not in issue, but is tendered in support of some other
issue, it is as, a general rule, excluded. So, in civil proceedings, evidence of character to
prove conduct imputed is declared by the Act to be irrelevant (s. 52) [s. 54 E.A]. the two
exceptions to this rule are, that, in civil proceedings evidence of character as affecting
93
Webster’s Dictionary.
94

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damages, is admissible (s.55) [s.54 (2)]; and in criminal proceedings…the fact that the
person accused is of good character, is, relevant, but the fact that he has a bad character
is, except in certain specified cases, irrelevant (ss. 53 ad 54) [ss.55 and 56 E.A].”95
In the case of Queen v. Rowton it was held that the general exclusion of character
evidence is based on grounds of public policy and fairness, since its admission would
surprise and prejudice the parties by raking up the whole of their careers, which they
could possibly come into court prepared to defend. 96 The business of the court is to try
the case, and not the man and a very bad man may have a very righteous cause.
When a party’s character which in this context means his reputation is not directly in
issue in the proceedings but evidence of it is tendered in proof of some other facts, it is
general excluded. In certain circumstances evidence of reputation is admissible for the
purpose of establishing a person’s good or bad character. The admission of evidence of
reputation is now largely confined to defamation actions where what is relevant will
depend upon the terms of the pleadings. Where damages are at large, in mitigation of
damages irrespective of the right to cross-examine. In general, in civil cases, evidence as
to character and reputation is not admissible to bolster a party’s case, although it may
certainly be relevant in cross-examination, for example, as to credibility. 97
The exclusion of evidence of character mention in this section is based on the principle of
law that he evidence adduced should be alike, directed and confined to the matters which
are in dispute or which form the subject matter of the investigation. To admit character
evidence in every case or to reject it in every case would be equal fatal to be rejected is as
embarrassing a problem as any legislature can be called upon to resolve. 98 The general
rule is that the evidence as to character of a person is irrelevant in civil cases.
Section 54(2) provides that the character of any person is relevant when it affects the
amount of damages which he ought to receive. This section apply only to civil cases.
Section 54(2) is a corollary to section 14 in cases where damages are claimed. Section 14
states that in suits in which damages are claimed any fact which will enable the court to
determine the amount of damages which ought to be awarded is also relevant. Thus in
civil cases where the court has to determine the quantum of damages, evidence of
character becomes relevant.
In civil cases good character being presumed may not be proved in aggravation of
damages, but bad character is admissible in mitigation of damages provided that it would
not if pleaded amount to a justification for example, in cases of defamation the general
bad reputation of the plaintiff may be proved. In cases of breach of promise of marriage,
the plaintiff’s general character of immorality is relevant. In cases of seduction, evidence
of a general character of immorality on the part of the person seduced is relevant. The
argument in favour of considering reputation is that the person should not be paid for the
loss of that which he never had.99
95
Woodroffe and Meer Ali’s Evidence, 10th Edn., Vol. 11, p. 718.
96
(1865) 34 LJ (MC) 57
97
Halsbury 4th Edn., Vol. 17, para 50, 52 page 38.
98
Best on Evidence, 8th Edn., sections 251 and 256, pp. 241 and 245.
99

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13.3 Good Character in Criminal Cases

Section 55 provides that the fact that the person accused in criminal proceedings is of
good character is relevant.
The principle upon which good character may be proved is that it affords a presumption
against the commission of crime. This presumption arises from the improbability as a
general rule as proved by common observation and experience that a man who has
uniformly pursued an honest and upright course of conduct will depart from it and do an
act so inconsistent with it. Such a person may be overcome by temptation and fall into
crime and case of that kind often occur; but they are exceptions. The rule is otherwise;
the influence of this presumption from character will necessarily vary according to the
circumstances of different cases.100 Character evidence is a very weak evidence; it cannot
outweigh positive evidence in regard to guilty of a person.
Stephen,101 states “Though general evidence of bad character is not against the prisoner,
general evidence of bad character is always admitted in his favour when in criminal
cases the defense adduce evidence of good character of the accused, the prosecution has
the right to call evidence in rebuttal.
Phipson102 states “Although as a matter of decision, Rowton103 was concerned with the
evidence in rebuttal, it laid down general rules with regard to the admissibility of
evidence of the accused’s good character, rules which have never been expressly doubted
and which have, from time to time, been explicitly applied or endorsed. The principle
emerging from that case may be summarized as follows:
i. The character witness called on behalf of the accused can give evidence of the
general reputation of ht accused for good character, but not of his individual
opinion as to the accused’s disposition.
ii. As the best character is often the least talked about, the witness may even give
negative, instead off affirmative evidence on the subject. “’The testimony of a
witness that he has never heard anything against the accused in relation to the
particular element of character is admissible and even cogent testimony on the
point.”
iii. Such a witness may not be examined in chief as to particular fact.
iv. The character proved must be of the specific kind impeached, e.g. honest where
dishonest is charged, good character in other respects being irrelevant.”
Good character is not a defense, for no-one would then be convicted, as everyone starts
with a good character. The defendant is, however, entitled to rely on the fact that he is of
previous good character as making it less likely that he would have committed the
offence. If there is any room for doubt, his good character may be thrown in the scale in
his favour.104
100
Wigmore 123.
101
Stephen, General View of the Criminal Law of England.
102
Phipson on Evidence, 15th Edn., (2000), page 237, paras: 17-04.
103
R. v. Rowton (1865)34 LJMC 57.
104
Phipson on Evidence, 13th Edn., page 240, paras: 13-12.

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The fact that the accused is of good character is relevant in weighing the probabilities in
a doubtful case, but it can be dispensed with in cases where the prosecution case has not
been proved.
13.4 Bad Character in Criminal Cases
According to section 56, in criminal cases, evidence that the accused is of bad character
is irrelevant, unless evidence has been given that he is of good character. Evidence of bad
character of an accused person is not relevant for the purpose of raising a general
inference that the accused is likely to have committed the offence charged. Such
evidence is irrelevant and cannot be legally admitted in evidence whether elicited by the
prosecution or by the defense.
Halsbury105 observed that “it is not, in general, permissible, in criminal case, for that
prosecution to adduce evidence that the accused either bears a bad character general
reputation in the community, or has a natural disposition to commit crimes of the class
charged the accused nevertheless is permitted to adduce or give evidence of his good
reputation, and if he thus puts his character in issue, the prosecution may attack it.
If a man has been punished for his previous crime, it is manifestly unfair in every future
trial (upon charged of which he may of course be quite innocent) his whole past career
should raked up.
In criminal cases too prove that defendant committed the crime charged evidence may
not be given either that he; (1) bore a bad reputation in the community, or (2) has a
disposition to commit crime of that kind or (3) had on other occasions committed
particular acts of the same class evincing such a disposition.106
In the case of Makin v. Attorney General of New South Wales (1894) AC 57, the court
dealt with a case where a couple was tried and found guilty of the murder of an infant
child whose body was found buried in their garden. There was no evidence that either the
husband or the wife had killed the child. Before the trial court evidence of finding bodies
other than the body of the child was given besides the evidence of others who had
entrusted their children to that couple in the past and the children were not thereafter
heard of. The court observed; “it is undoubtedly not competent for the prosecution to
adduce evidence tending to show that the accused has been guilty of criminal acts other
than those covered by the indictment, for the purpose of leading to the conclusion the
accused is a person likely from his criminal conduct or character to have committed the
offence for which he is being tried. On the other hand, the mere fact that the evidence
adduced tending to show the commission of other crimes does not render it inadmissible,
if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the
question whether the acts alleged to constitute the crime charged in indictment were
designed or accidental, or to rebut a defense which would otherwise be open to the
accused.”
Where the accused has attempted to show his good character in his own aid under section
56(1) the prosecution may in rebuttal offer evidence of his bad character. The accused,
by going to his own character, gives a challenge to the prosecution. The prosecution
105
4th Edn., Vol. 17, para 51, page 38.
106
Phipson on Evidence, 13th Edn., para 13-17.

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therefore is at liberty to rebut his claim that he has a good character otherwise the court
would be misled.107
• Bad character of any person is itself a fact in issue.
Section 56(2) states that this section does not apply to cases where the bad character of
any person is itself a fact in issue. Evidence of reputation or disposition must be confined
to the particular traits which the charge is concerned about. Thus it would be useless to
offer evidence of the accused’s reputation for honesty on a charge of cruelty or his mild
disposition on a charge of theft. Reputation for honesty would be relevant on a charge of
theft, and a merciful disposition on a charge of cruelty.108
• Previous conviction relevant as evidence of bad character
Section 56(3) provides that previous conviction is relevant as evidence of bad character.
However, under the proviso, a previous conviction is not admissible in evidence against
the accused except where he is liable to enhanced punishment on account of previous
conviction. The previous conviction for any offence becomes relevant only after
conviction.
The previous conviction may further be relevant under section 10 as showing motive. If
may also become relevant under section 16(2) when the existence of any state of mind or
body or bodily feeling is in issue as relevant e.g. A is accused of fraudulently delivering
to another person a counterfeit coin which at the time when he delivered it, he knew to be
counterfeit. The fact that at the time of itself delivery A was possessed of a number of
other pieces of counterfeit coin is relevant. The fact that A had been previously convicted
of delivering to another person as genuine a counterfeit coin knowing it to be counterfeit
is relevant. Previous conviction may also be relevant under section 45 dealing with
relevance of judgment and other than those mentioned in sections 42 and 44. E.g. A is
charged with theft and with having been previously convicted of theft. The previous
conviction is relevant as a fact in issue.
In assessing punishment the court may take into consideration the accused’s character
and antecedents or the state of crime in the country or locality.
Section 56(4) protects persons charged and called of witness under section 130(4) that he
shall not be asked, if asked he is not obliged to answer any question which shows that he
has either been charged or convicted of any offence other than the one which he is being
charged under this section, also the person is not required to answer any question which
tend to show that he is of bad character. Exceptions to this section are:
• In order to show that he is guilty of the offence with which he is charged, proof that
he has committed or been convicted of such other offence as evidence is admissible.
• He or his advocate had asked the prosecution questions in order to establish his own
good character.
• He has given evidence of his own good character.
107
108

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• The nature or the conduct of the defense is such as to involve imputations on the
character of the complainant or the prosecution witness.
• He has given evidence against any other person charged with the same offence.

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Evidence LAW (2)-Mshana

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2. RELEVANCY AND ADMISSIBILITY OF ACTS

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Statements explaining and accompanying acts—res gestae: The question is whether A

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i. When it relates to the cause of his death

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“This caution is even more necessary in this country (Tanganyika)

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3.3.2 Statements Made in the Ordinary Course of Business

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3.3.4 Statements Giving Opinion as to Public Right etc.

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3.3.10 Statements Under Special Circumstances

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4.3.1 Public documents

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4.6 Proof of Document by Secondary Evidence

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4.8 Presumption as to documents

• Regarding collections of laws and reports of decisions

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